Francis W. Maclean, K.C.I.E., C.J.
1. This is an appeal from the decision of the third Subordinate Judge of Hooghly. The case is of this nature. The plaintiff was an eight-anna share in a certain putni tenure, and the defendant No. 3, who is a minor, is entitled to the other eight annas share. They defaulted in the payment of the putni rent, and the zemindar took proceedings under Regulation VIII of 1819 to have the putni tenure sold. The tenure was put up for sale, and was sold on the 23rd November 1896, and the defendant No. 2 was the purchaser under that sale. The defendant No. 1 is the zemindar, the. Maharajah of Burdwan, a minor, whose estate is under the Court of Wards.. The sole question we have to decide is whether the sale was duly published in accordance with the requirements of paragraph 2 of Section 8 of the above Regulation, the suit being one, as I said before, to have the sale of the putni set aside on the ground that the requirements of that Regulation were not duly complied with.
2. The Judge in the Court below, on this issue, came to this conclusion: 'I have carefully considered that evidence and am inclined to think that the notice was not duly published.' That is not a very strong or confident expression of opinion; but later on he says: 'The evidence is not such as to warrant a finding that there was due publication of the sale notice at the putnidar's cutcherry.' He found, therefore, against the validity of the sale, and in the plaintiff's favour.
3. The evidence in support of the zemindar's case has been read to us. There is the evidence of the gomashta of defendant No. 3, of the peon who served, and, as he said, stuck up the notice and duly published it, and of a chowkidar of the village, and that evidence is corroborated by a post-card, which the peon sent on the same day from the village, where he had, as he says, published the notice, to the cutcherry of the zemindar at Burdwan.
4. I ought to mention that, although there were the two co-sharers of this putni tenure, there was but one cutcherry for the two, viz., the cutcherry where the notice is alleged to have been stuck up. These witnesses depose to the notice having been properly stuck up and published. On the other side, viz., for the plaintiff, we have the evidence of the gomashta of the plaintiff who was residing at the time in the cutcherry; he says that he never saw or heard of any such notice, and that no such notice was ever stuck up or duly published in the cutcherry. His evidence is supported by that of two or three leading men in the village, who depose to the same effect, There is, therefore, a substantial controversy on the evidence, and I am not disposed to say, nor do I think I should be justified in saying, that upon the evidence the conclusion arrived at by the learned Judge in the Court below was wrong.
5. The formalities prescribed in the second clause of Section 8 of the above Regulation were certainly not complied with. That clause says: 'The zemindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mofussil shall be served by a single peon who shall bring back the receipt of the defaulter, or of his manager for the same; or in the event of inability to procure this, the signature of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot.' The peon obtained the receipt of the gomashta of defendant No. 3, but he was not the sole defaulter: he did not get the receipt of the two defaulters or of their managers or the signature of three substantial persons residing in the neighbourhood nor did the peon go to the cutcherry of the nearest Munsif or to the nearest thannah or make the oath or obtain the certificate referred to in the clause. It is clear then that these requisite formalities of the Regulation were not complied with.
6. It is urged, however, by the learned Vakil for the appellant, upon the authority of the case of Sona Beebee v. Lallchand Chowdhry (1888) 9 W.R., 242, that those requirements are directory merely, and that, if it be proved that the notice has been duly published, it is not necessary that those requirements should be strictly complied with. Sir Barnes Peacock, no doubt, says: 'The material part of Clause 2, Section 8, Regulation VIII of 1819, so far as this case is concerned, is that the notice required to be sent into the mofussil shall be served. The zemindar is exclusively answerable for the observance of the forms prescribed by that clause. The subsequent part of the section, which prescribes that the serving peon shall bring back the receipt of the defaulter, or of his manager, or in the event of his inability to procure it, that he shall obtain that which, by the Regulation, is substituted for it, is merely directory, and, if not done, does not vitiate the sale, provided the notice is duly served.
7. That case has been commented upon by their Lordships of the Judicial Committee of the Privy Council in the case of the Maharajah of Burdwan v. Tara Sundari Debi (1882) I.L.R., 9 Cal., 619 (622): L.R., 10 I.A., 19 (22). At page 622 there is this passage:
That is a very important Regulation '(meaning the above Regulation) and no doubt it was enacted for a certain and defined policy, and ought, as a rule, to be strictly observed. Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar, who institutes the proceeding, exclusively responsible for its regularity. Their Lordships do not, however, intend at all to controvert a decision, to which their attention was called, of Sir Barnes Peacock when he filled the office of Chief Justice of the High Court of Bengal, to the effect that if the notice itself has been duly published, if it is not matter of controversy, if the fact was ascertained that it was published, then one would not regard any objection either to the form of the receipt or the absence of the receipt itself.
8. In a later case, the case of the Maharani of Burdwan v. Krishna Kamini Dasi (1886) I.L.R., 14 Cal., 365: L.R., 14 I.A., 20, the case I have just referred to is thus commented upon by their Lordships at page 373: 'In the case of the Maharajah of Burdwan v. Tara Sundari Debi (1882) I.L.R., 9 Cal., 619 (622); L.R., 101. A., 19 (22) this Committee found that the question whether the requisite formality had been observed depended on conflicting evidence, but that the statutory mode of proof had clearly not been followed, and they held that the decision must go against the zemindar, whose business it was to follow the prescribed method. They did not differ from Sir Barnes Peacock, nor did they hold that the statutory proof was the only proof that could be given. Neither did Sir Barnes Peacock decide nor intimate any opinion that one of the important formalities required as preliminary to a sale could be dispensed with.'
9. From these decisions I conclude that, if the fact of the due publication of the sale notice be not in controversy, be not the subject of conflicting evidence, then it is not incumbent upon the zemindar to show that the formalities prescribed by the statute have been complied with, but that, if there be a conflict of evidence on the point, and the zemindar cannot show that the statutory method of proof prescribed has been followed, the decision must go against him as it is his business to follow the prescribed method. In the present case there is a most distinct conflict of evidence as to whether the notices were or were not duly published, and the zemindar cannot show that the statutory method of proof prescribed has been followed. His case, therefore, fails.
10. On these grounds, I consider that the decision of the Court below was right, and that this appeal No. 332 must be dismissed with costs.
11. As regards the appeal No. 329, which is an appeal upon the question of costs by the minor defendant No. 3, who had been ordered jointly with the, other defendants by the Court below to pay the plaintiff's costs, in my opinion such appeal ought to succeed. This appellant was not asked by the plaintiff to join as a co-plaintiff, and, looking at the nature of his defence, which is practically tantamount to a submission of his rights in the matter to the Court, he ought not to have been held liable to pay the plaintiff's costs. That portion of the decree of the lower Court which makes him liable for the plaintiff's costs must, therefore, be reversed. He will neither pay nor will he receive any costs in the Court below, but he must have his costs of this appeal both as against the plaintiff and the defendant No. 1, who has resisted his appeal.
12. As regards the appeal No. 348, which is the appeal of the auction-purchaser, he raises two points; first, that the decree of the Court below is wrong in not allowing him interest on his purchase money; and, secondly, that it is equally wrong in holding him jointly liable for the costs of the plaintiff in the suit. As regards the latter point, the learned Judge in the Court below was right. The auction-purchaser, instead of submitting, as he might have done, his rights to the Court to deal with as it thought fit, made common cause with the zemindar against the plaintiff, set up in his defence that the notices had been duly published, and urged that the sale was a binding and valid sale. He resisted the plaintiff and resisted him unsuccessfully, and has consequently rendered himself jointly with the defendant No. 1 liable for the plaintiff's costs of the suit.
13. As regards the question of interest this appeal must succeed. Section 14 of Regulation VIII of 1819 says: 'The purchaser shall be made a party in such suits, and upon decree passing for reversal of the sale' (which is what happened here), 'the Court shall be careful to indemnify him against all loss at the charge of the zemindar or person at whose suit the sale may have been made.' He is entitled to be 'indemnified,' and he is not indemnified if he simply gets back his purchase money without any interest. He is clearly entitled to interest on his purchase money at 6 per cent, per annum. The decree of the Court below must, therefore, to that extent, be reversed. As he has partially succeeded, and partially failed, on this appeal, there will be no costs on either side.
14. I am of the same opinion. I only wish to add a few words with reference to appeal No. 332 of 1897, that is, the appeal of the zemindar. The main question raised in that appeal is, whether the sale notifications were duly published; and the point in dispute with reference to the sale notifications was, whether the notice required by Clause 2 of Section 8 of Regulation VIII of 1819 to be served in the defaulting putnidar's cutcherry was, in this case, duly published.
15. Upon this question, having regard to the evidence adduced in the case, I am of opinion that the answer must be in favour of the plaintiff. The law makes the zemindar 'exclusively answerable for the observance of the forms' prescribed in the second clause of Section 8 of the putni Regulation. The evidence adduced on the side of the zemindar, defendant, is not, to my mind quite satisfactory, seeing that the zemindar's serving officer, who said that he had been to the cutcherry of the defaulter on more occasions than one, could not remember on which side of the road, running through the village, the cutcherry was; and seeing also that his statement as to the publication of the sale notice in the cutcherry is contradicted by three witnesses examined for the plaintiff, one of whom says he was in the cutcherry at and about the time of the alleged publication, and the other two say that they are the mandate of the village, who used, on previous occasions, to be sent for at the time of publication of sale notices.
16. In this view of the evidence it is not absolutely necessary for us to say anything upon the question of law raised in the case; but as that question was discussed at some length, and as the Court below has pronounced an opinion upon the point, it may be desirable that I should say a few words upon it.
17. The question of law raised is this, namely, whether, if it is found that the sale notice was published in the defaulter's cutcherry, it is still necessary for the zemindar to make out that the mode in which such publication is required by Clause 2 of Section 8 to be proved, had been observed.
18. Where there is no controversy as to the due publication of the notice, and the only dispute is as to whether the statutory mode of proof of such publication was resorted to, the answer to this question must be in the negative according to the decision of the Privy Council in the cases of Maharajah of Burdwan v. Tara Sundari Debi (1882) I.L.R., 9 Cal., 619; L.R. 10 I.A., 19, and Maharani of Burdwan v. Krishna Kamini Dasi (1886) I.L.R., 14 Cal., 365; L.R., 14 I.A. 20. But where, as in this case, there is a controversy, and a substantial controversy, as to whether the sale notice in the mofussil, that is, in the defaulter's cutcherry, has been duly published, or not, the question whether the mode of proof of the publication of the sale notice prescribed by law has, or has not, been resorted to, cannot be said to be an immaterial question. This will appear clear from the following passage in the judgment of the Privy Council in the second of the two cases just cited. In that case their Lordships observe: 'In the case of Maharajah of Burdwan v. Tara Sundari Debi (1882) I.L.R., 9 Cal., 619; L.R. 10 I.A., 19 this Committee found that the question whether the requisite formality had been observed depended on conflicting evidence, but that the statutory mode of proof had clearly not been followed, and they held that the decision must go against the zemindar, whose business it was to follow the prescribed method. They did not differ from Sir Barnes Peacock, nor did they hold that the statutory proof was the only proof that could be given. Neither did Sir Barnes Peacock decide or intimate any opinion that one of the important formalities required as preliminary to a sale could be dispensed with.'
19. No doubt there is a distinction between the thing to be proved and the mode of proving it; but if there is any controversy as to the thing to be proved, the question whether the statutory mode of proving it has or has not been resorted to cannot be regarded as immaterial to the inquiry.
20. The thing to be proved is, as I understand it, the publication of the sale notice in the cutcherry of the defaulting patnidar. The mode of publication is, according to the section, publication by sticking up the notice in some conspicuous part of the cutcherry; but the mere sticking up the notice would not, as the learned Senior Government Pleader appeared to contend, be a sufficient publication by itself. For if that were so, a mere sticking up of the notice without any intention of allowing it to remain stuck up, and with the object of taking it off the next moment, would be sufficient service of notice. That could never have been intended. It is clear, from the several parts of the clause, that what is intended is a real and bona fide publication of the sale notice.
21. Then again, although occurring in the part relating to the mode of proof of the publication, we have these important words in the section: 'The zemindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mofussil shall be served by a single peon, who shall bring back the receipt of the defaulter, or of his manager, for the same; or, in the event of inability to procure this, the signatures of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot.'
22. That indicates, indirectly no doubt, that the notice is to be published, and then the serving officer is to make some bond fide endeavour to obtain the receipt of the defaulter or his manager; and it is only in the event of his inability to procure such receipt that the other modes of proof are to be resorted to. In saying this, I must not be understood to mean that the receipt of the defaulter or of his agent is necessary, or that personal service of the notice on the defaulter is required. The law does not make personal service of notice on the defaulter necessary or sufficient. But it must be borne in mind that where there is a dispute as to the due publication of the sale notice, the question whether the serving officer made any bona fide endeavour to obtain the defaulter's or his agent's receipt in the first instance, as required by law, must have an important bearing upon the inquiry, especially where the point for determination is whether the alleged publication was real or colourable only. Of course, what would be a sufficient endeavour to obtain such a receipt must depend upon the circumstances of each case. In the present case there was not only no endeavour to obtain the receipt of one of the two defaulters, that is the plaintiff, or his agent, but, as I have said above, the evidence as to the sticking up of the notice in the defaulter's cutcherry is quite unsatisfactory.