Macpherson and Banerjee, JJ.
1. The plaintiff, who is the appellant in this Court, was part owner of a tenure appertaining to a Government khas mehal. The tenure was sold by the Collector for arrears of revenue, and was purchased by the second and third defendants in this suit, who subsequently disposed of a portion of their interest to the other defendants. The object of this suit is to set aside the sale and to recover possession of the property sold, on the ground that the sale was illegal and that it was also irregular, and that in consequence of the irregularities it had been sold for a great deal less than its real value. The lower Court dismissed the suit, holding that the alleged irregularities were not proved and that the sale was not illegal.
2. It appears that before the sale the plaintiff offered to deposit the amount of the revenue or rent in arrears, but that the Collector refused to take it. It is argued that the sale was illegal because the Collector had no authority to refuse to receive the money; and that the money having been tendered the property ought not to have been sold.
3. The validity of this contention depends upon the question whether the Sunset. Law applies to the sale of tenures. It is contended in the first place before us that this sale did not take place under the provisions of Act XI of 1859 and Bengal Act VII of 1868, but under the Public Demands Recovery Act. For that contention we think there is no ground. It is clear that the sale was not, as a matter of fact, held under Bengal Act VII of 1880, and also that it was not regarded by the plaintiff as a sale under that Act. The irregularities and illegalities charged in the plaint are those which would arise in connection with a sale held under the Revenue Sale Law.
4. Then as to the question whether the Sunset Law applies to the sale of tenures, Section 11 of Bengal Act VII of 1868, which is the section applicable, enacts that 'whenever any revenue payable to Government in respect of any tenure not being an estate shall be in arrears after the latest day of payment fixed in the manner prescribed in Section 3 of the said Act XI of 1859, the Collector to whom such revenue is payable may cause to be affixed such notices as are mentioned in Section 5 of the said Act XI of 1859, and may thereupon cause such tenure to be sold in the manner, and subject to the provisions in and by the said Act XI of 1859 provided for the sale of estates for the recovery of arrears of revenue.' The subsequent provisions of that section are modifications of the provisions of Act XI of 1859 in connection with sales held under the section. Section 6 of Act XI of 1859 prescribes the procedure to be followed in notifying a sale, and directs that 'except as hereinafter provided, all estates or shares of estates so specified shall, on the day notified for sale or on the day or days following, be put up to public auction by and in the presence of the Collector or other officer as aforesaid, and shall be sold to the highest bidder. And no payment or tender of payment made after sunset of the said latest day of payment shall bar or interfere with the sale, either at the time of sale or after its conclusion.' We feel compelled to hold, although somewhat unwillingly, that the contention of the appellant fails; and that the Sunset Law does, and was intended to, apply to the sale of tenures. There seems to be no way of getting out of the direct terms of the section, or of holding that, although the sale is to be held in the manner and subject to the provisions contained in (among other sections) Section 6, Act XI of 1859, the provision relating to payment or tender of payment after sunset of the latest day of payment should not apply. In the lower Court the appellant adduced a good deal of evidence to show that the notice, which, according to the provisions of Section 7 of Act XI of 1859, ought to have been served in the Mofussil, was not served. The evidence has been read to us, and we should not feel disposed to hold contrary to the decision of the lower Court, that it was proved that the notice had not been served. But, however that may be, we think that the appellant is precluded by Section 8 of Bengal Act VII of 1868 from proving that this particular notice was not served; that section makes the certificate of title given under the provisions of the Sale Law conclusive evidence in favour of the purchaser that 'all notices in or by this Act or by the said Act XI of 1859 required to be served or posted have been duly served and posted.' The cases cited--Sadhusaran Singh v. Panchdeo Lal I.L.R. 14 Cal. 1, Bal Mokoond Lal v. Jirjudhun Roy I.L.R. 9 Cal. 271, Lala Mobaruk Lal v. Secretary of State for India in Council I.L.R. 11 Cal. 200--do not help the appellant in his contention that that section does not apply to notices under Section 7.
5. Another difficulty in the appellant's way is, that, even assuming that the notice under Section 7 was not served, and that the price realized was not the fair price of the property, there is nothing to connect the inadequacy with the irregularity. Prima facie, an omission to serve a notice, forbidding ryots and under-tenants to pay rent to the defaulting proprietor after the last day of payment would not in any way affect the price which intending bidders would offer for the property.
6. It was lastly contended that the Collector ought to have proceeded under the provisions of Bengal Act VII of 1880, and not under the provisions of Bengal Act VII of 1868, as when the choice of two procedures is given, that which is most favourable to the debtor ought to be adopted. It is only necessary in answer to point to the provisions of Section 2 of Bengal Act VII of 1880, which says that 'the powers given by this Act shall be deemed to be in addition to, and not in derogation of, powers conferred by any Act now being in force for the recovery of any due, debt, or demand to which the provisions of this Act are applicable.'
7. The appeal fails on all the grounds which have been taken before us, and must be dismissed with costs.
8. This judgment will also govern appeal No. 162 of 1892.