1. In this case it appears that Tauzi No. 3306 comprised numerous separate accounts. The plaintiff had an interest in separate account No. 282, the 1st defendant in No. 168 and the 2nd defendant in 222. Several of these accounts fell into arrears, among them being No. 222 and the residuary share. They were advertised for sale and the sale was fixed for the 20th September 1909. On that date No. 222, among others, was put up for sale but no bids were received. Accordingly the Collector, under Section 14 of the Revenue Sales Act, 1859, declared that the entire estate would be sold unless the other sharers paid up the arrears within 10 days. The next day, the 21st September, the 1st defendant paid in the arrears due on No. 222 and on the 28th he paid all the sums due on the various separate accounts. On the 22nd September the plaintiff; offered to pay in the money due on the various separate accounts with the exception of the residuary account. The Collector said that no permission of his was needed to deposit the money and that the question, with whom the shares in' default would be settled, would be decided after the expiry of the 10 days. After that, on the 4th November, the Collector declared the 1st defendant to be the purchaser on the ground that he had paid in the money first. This order was upheld on appeal by the Commissioner on the' 8th February 1910, and the sale was confirmed. Possession was delivered to the 1st defendant on the 31st March 1910 and in the following December he sold the property to the 3rd defendant. On the 7th February 1911, this suit was brought for possession of the whole of No. 222, and in the alternative for possession of half. The learned District Judge held that the 1st defendant was a mere benamidar for the 2nd defendant, who was a defaulting proprietor of No. 222 and not entitled to purchase under Section 14 of the Act. Accordingly he decreed the plaintiff's suit in full. The 3rd defendant appeals.
2. An objection taken that the suit was instituted out of time was dropped. It appears that the suit was instituted on the last day with a Court-fee Rs. 800 in defect. The Subordinate Judge, in whose Court the case was instituted, weakly allowed two adjournments to put in this money and subsequently the Court was closed for three days. The money was paid on the opening day. The order of the Subordinate Judge was in my opinion, quite unjustifiable. It is not proper for a Court to extend the period of limitation beyond that allowed by law, to the prejudice of defendants, when there is no question of any mistake, merely to suit the convenience of the plaintiff. But the order having been made and complied with, the question of limitation cannot now be raised.
3. Next it is contended that the lower Appellate Court erred in holding that the 1st defendant was a benamidar and it is urged that there is no evidence to support this finding. In my opinion, however, the finding is perfectly right. You cannot expect direct evidence of a benami. The whole object of such a transaction is to suppress evidence of the real facts. Bat the true facts can be proved by circumstantial evidence and this has been done in the present case. The learned District Judge has dealt fully with this question and, as I agree with his reasoning and conclusions, it is unnecessary to repeat them. Suffice it to say that in my opinion there can be no doubt that the 2nd defendant was the real purchaser, both in the purchase by the 1st defendant in September 1909, and in the sale by the 1st defendant to the 3rd defendant in December 1910.
4. Assuming then that the 2nd defendant was the real purchaser in September 1909, it must next be decided whether, being a defaulting proprietor of No. 222, he could purchase under Section 14. The learned District Judge holds that he could not do so, not being another sharer' within the terms of the section.
5. The section is not very easy to construe and perhaps it will be convenient to set it out in full.
xiv. If in any case of a sale held according to the provisions of the last preceding section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the Collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date, unless the other recorded sharer or sharers, or one or more of them, shall within 10 days purchase the share in arrear by. paying to Government the whole arrear due from such share. If such purchase be completed the Collector or other officer as aforesaid shall? give such certificate and delivery of possession, as are provided for in Sections 28 and 29 of this Act, to the purchaser or purchasers, who snail have the same rights as if the share had been purchased by him or them at the sale. If no such purchase, be made within ten days as aforesaid, the entire estate shall be sold, after notification for such period and publication in such manner as is prescribed in Section 6 of this Act.
6. As there is no previous reference in the section to any sharer the words 'other recorded sharer' must I think, mean 'a recorded sharer of a share other than the share exposed for sale.' This perhaps would by implication exclude any sharer of the share exposed for sale, even though he himself might have paid his quota of the revenue due on the share exposed for sale. It seems doubtful if the Legislature intended this. It is clear from Section 53 that defaulting proprietors may purchase at sales for arrears of revenue and I can see no reason why they should be excluded from sales under Section 14. Of course at a sale under Section 14 they merely have to pay the arrears due, whereas at an auction they would have to pay the full value. It may therefore be said that to allow them to purchase under Section 14 might defeat the law, because such a purchase would come to the same thing as depositing the arrears after the latest day of payment, which can not be done without the Collector's leave; whereas in the case of an auction they would have to pay the full value. But as they would be entitled to the balance after the arrears were satisfied, the distinction would not make much practical difference. If the defaulting sharer could have purchased the share on the day of sale under Section 13, and this would seem from Section 53 to be permissible, it is difficult to understand why he should not purchase under Section 14. I am inclined to think, therefore, that the word 'other' in Section 14 is a mere inadvertence, though in the view that I take of the case it is not necessary to come to a definite decision on this point.
7. Next it is argued that as the plaintiff did not pay in the arrears due on all the separate accounts, he is not entitled to the benefit of Section 14. It seems that the framers of the section did not advert to the possibility of more than one separate account falling into arrears, and some difficulty might arise in that case. Suppose an estate consisting of 3 separate accounts A, B, and C. The revenue of A is paid up exactly with nothing over, and B and C are in arrears to the extent of Rs. 100 each. Declarations under Section 14 are made with respect to B and C. The owner of A hearing of the declaration about B pays in Rs. 100 and becomes the owner. He still apparently may lose both A and B for the arrears on C, and his purchase of B in that case would go for nothing. But I do not think that in this case the materials justify us in saying that the plaintiff's deposit was insufficient. The estate could only be sold if the whole of it was in arrears, and we cannot say that the plaintiff's deposit was insufficient without proof of that fact. This might depend on the question whether the accounts, which were not in arrear, showed balances in favour of the owners, and this question has not been considered. Indeed, it would appear at first sight from Ex. 11 that the arrears on the whole estate were much less than the plaintiff's deposit.
8. The next point to be considered is whether the, Collector was right in holding that the defendant was the sole purchaser. It is argued that Section 14 gives all the co-sharers the right to deposit the arrears for 10 days and that no co-sharer can defeat that right by depositing the arrear due a little earlier than his fellows. Reference is made to the case of Debi Pershad v. Mussamut Aklio Koer (1899) 4 C.W.N. 465. In that case, however, this point did not arise. It was not stated who paid the arrears first. The Collector issued a joint certificate to all those who had paid, and the plaintiff sued to recover a third. The only question discussed was whether he was entitled to a third, or to a share proportionate to his interest in the present estate. It seems to me that the section was intended merely to give co-sharers a chance of saving the estate and to secure the payment of the revenue and was not at all intended to define the rights of the co-sharers inter se. The words 'unless the other recorded sharer or sharers, or one or more of them, shall, within ten days, purchase the share in arrear by paying to Government the whole arrear due from such share' mean in my opinion that the purchase is effected by the payment of the arrears. As soon as the payment is made the purchase is complete and there is nothing left for any one else to buy. The Collector is bound therefore, in my opinion, to recognise the depositor who first pays the whole amount, or, if there are more depositors than one, to recognise as joint purchasers those whose payments first amounted to the total arrears due.
9. Finally, it seems to me that even if the Collector's order was wrong, and even if the purchase was bad as being made by a defaulting proprietor of No. 222, the suit is barred by Section 38 of the Act. It was held in Gossain Chutturbhooj Dut v. Ishri Mul (1894) I.L.R. 21 Calc. 844 that Section 33 applies to sales under Section 14, a view with which I. entirely agree, and as the plaintiff has suffered no injury, he section is fatal to the suit. It is argued that the sale was a nullity and therefore it is unnecessary to annul it. That contention was dealt with once for all in Gobind Lal Roy v. Ramjanam Misser (1893) I.L.R. 21 Calc. 70. Section 38 lays down that sales for arrears of revenue cannot be annulled except in a certain way. The operation of the section had been frequently avoided by holding that some particular defect alleged prevented the sale from being a sale under the Act, or in other words made it a nullity. All these refinements were swept away by the decision I have quoted, and flow a sale for arrears of revenue can only be assailed in accordance with the provisions of the Act. Even if there had been a distinct provision in Section 14 that a separate account should not be sold to a defaulting proprietor, I think that such a sale could under this decision be questioned only in accordance with the Act. But when there is no such distinct prohibition the sale cannot possibly be regarded as a nullity.
10. Next it is contended that the plaintiff does not want the sale annulled but merely that he may be declared the purchaser. To accept this contention would, in my opinion, be twisting the plain English of the statute. The defendant has been formally declared the purchaser and the land has been delivered into his possession. To take it away from him and give it to the plaintiff would, in my opinion, be a manifest annulment of the sale; a complete annulment if the whole land were taken away from him, and an annulment pro tanto if a portion were taken. In my opinion, therefore, the salt is barred by Section 33 of the Revenue Sales Act, 1859. The appeal must be decreed and the suit dismissed with costs.
11. I agree.