B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiffs and the suit was one commenced by them to set aside a revenue sale, and in the alternative for a declaration that their putni interest, under the estate sold, was not in any way affected by the sale and could not be annulled. The facts are not disputed and lie within a narrow compass. Touzi No. 335 of the 24-Pargannas Colleetorate which belonged to certain deities named Sri Sri Gopi Nath Jew and others was sold for non-payment of arrears of revenue on 23rd September 193C. There was a putni created under this estate as well as estates Nos. 1078 and 1233 of the 24-Pargan-nas Colleetorate, which also belonged to the deities, in favour of the predecessors of the present plaintiffs, by a registered kabuliyat dated 5th Aswin 1314 B.S. The plaintiffs who are the present putnidars instituted this suit, and their allegations in substance were that the revenue sale was premature and without jurisdiction and that there were various irregularities which made it liable to be annulled under Section 33 of the Revenue Sale Laws. In the alternative they prayed, that as their putni was one indivisible tenure under three estates of which only one was sold, it could not be annulled under Section 37 of the Revenue Sale Laws. The suit was contested by defendant 1, the purchaser at the revenue sale. She traversed all the allegations of the plaintiff, and contended inter alia that the sale was neither irregular nor ultra vires. It was urged that the putni held by the plaintiffs was separable and even if it did include the lands of the other two estates, there was nothing in law which stood in the way of the purchaser's annulling it, to the extent that it was under Estate No. 335.
2. The trial Judge decreed the suit basing his decision on one point only, viz., that the sale was without jurisdiction. On all the other points, his findings were against the plaintiffs and he held definitely that though there was only one putni created under these estates it could be annulled so far as it related to the estate sold, under Section 37, Act 11 of 1859. Against this decision, there was an appeal taken by defendant 1 and the Additional District Judge who heard the appeal while affirming the other findings of the trial Judge sent the case back to him for a rehearing on the point as to whether the sale was without jurisdiction. The trial Court, after remand and on taking additional evidence, came to the conclusion that the Collector had jurisdiction to hold the sale, and this finding has not been challenged before us by the plaintiffs. The only point that has been canvassed in this appeal is that the putni held by the plaintiffs being one integral putni under three estates could not be annulled in part by defendant 1 who was the purchaser of one of the estates. Two questions arise for determination in con-nexion with the point raised. The first is. whether the kabuliyat of 1314, created three separate tenures under the three estates, or it was only one tenure? If the tenures are separate, there is no dispute that the tenure under Estate No. 335 could be annulled. If, however, it is held that there was only one tenure created jointly under three estates, the next question would arise, as to whether the purchaser was competent to annul it in part so far as it related to the Estate No. 335.
3. The answer to the first question depends on the construction of the kabuliyat. The executants of the kabuliyats were two ladies and the recitals show that one of them had a temporary ijara lease in respect of the three properties, which were being let out in putni to both of them jointly. This was said to be in pursuance of a compromise filed in a suit in the original side of this Court, which related to all the three properties, and one of the terms of the solenama was, that these two ladies would have a putni of these three estates at an yearly rental of Rs. 9500 which was the rent payable under the ijara lease. This recital undoubtedly lends support to the view that only one tenancy was created, the rent assessed being 9500 a year. Mr. Gupta lays considerable stress on the fact that the rent has not only been distributed among the three estates in certain proportions in the body of the document itself, but the schedule, which enumerates the kists, sets out in detail the instalments of rent payable in respect of each touzi separately. This may appear to be somewhat unnecessary, if only one tenure was created, but at the same time it is to be noticed that a total has been struck both in the body of the document as well as in the schedule. The aggregate of the rentals that are mentioned separately in respect of the three touzis, has been described as the rent of the putni mahal itself; and the kists or instalments payable by the tenant as set out in the schedule are the aggregates of the kist3 shown against the touzis separately.
4. Possibly the parties desired to have the basis of calculation embodied in the document itself, and this might have been done in view of the provision in the deed, that in case of acquisition of any portion of the land by the Government under the Land Acquisition Act leading to abatement of revenue in respect of the touzi to which the land appertained, there would be corresponding reduction in the rent payable by the putnidars. As the rents were separately shown in the putni kabuliyat the reduction in rent could easily be made on the materials given in the kabuliyat itself without the necessity of any further investigation. Throughout the kabuliyat the expression putni mahal is used in singular and there, is only one security given for the tenure under Regn. VIII of 1819. Considering the document, as a whole, it seems to me that it created only one tenure, and no separate tenure was created under each one of the touzis.
5. This leads us to the second and the more important question as to whether the purchaser could annul the putni so far as it comprises the lands of touzi No. 335. Mr. Gunada Charan Sen who appears for the appellants argues that the question must be answered in the negative, and in support of his contention he relies upon an unreported decision of a Division Bench of this Court, in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34 In that case there were five touzis which jointly held the lands comprised therein, and each touzi had an undivided fractional share in all the lands. A tenure was held under all these five touzis, and one of the touzis, viz., touzi No. 166 being sold for arrears of revenue, the purchaser sought to annul the under-tenure so far as it related to that estate and recover possession of a corresponding share of the lands. The Court of appeal below dismissed the plaintiff's suit on the ground, that the proprietors of other five touzis were in the position of joint landlords with the plaintiff, and Section 37 would not allow annulment of a portion of an under tenure. This view was affirmed in appeal by M.C. Ghosh and Bartley JJ. M.C. Ghosh J. relied upon two earlier decisions of this Court, which are to be found in Mahamed Guran v. Basarat Ali ('20) 7 A.I.R. 1920 Cal. 920 and Sooharam v. Durga Charan ('07) 5 C.L.J. 264 and held, that taking the words of Section 37 of Act 11 of 1859 as they stood, the auction purchaser was entitled to eject all under, tenants who held their lands entirely within his estate, but was not entitled to eject an under-tenant who held an under-tenure partly within his estate and partly within other estates. Bartley J. who delivered a separate concurring judgment also observed that Section 87 of Act 11 of 1859 did not contemplate the avoidance on annulment of a part of an under-tenure. The facts of this case are not exactly similar to those of the present one; for, in the case before us, it does not appear that the three estates held the lands jointly, but that would not make any difference in principle. It was definitely held by the learned Judges in that case that if a tenure is held partly under one estate and partly under another, the purchaser of one of the estates cannot annul the tenure so far as it relates to the estate purchased, and in fact what Section 37 of the Revenue Sale Law contemplates is an annulment of the whole and not part of a tenure. The case, therefore, if it is held to be correctly decided, does support the contention of Mr. Sen. I think, however, that the decision is not correct; it is unsound in principle, and is not supported by the decisions upon which it purports to rely. The primary object of Section 87, Revenue Sale Law, is undoubtedly the protection of revenue. As the Judicial Committee expressed in Forbes v. Meer Mahomed Hossain ('73) 20 W.R. 44:
The statutory title which the law gives to an auction purchaser is that for the protection of the revenue and in order to ensure its due payment by him and to avoid the necessity of repeated sales of the property, he is permitted to all those rights which the original settler at the date of the perpetual settlement had; and may in consequence of that, sweep away or get rid of all the intermediate tenures and incumbrances created by preceding zemindara since that date.
6. See also Mahomed Nasim v. Kasi Nath Ghosh ('99) 26 Cal. 194, Narayan Chandra v. Kasiswar Roy ('05) 1 C.L.J. 579 and Gokal Chandra v. Hara Sundari Dasi ('05) 9 C.W.N. 383. If it was the intention of the Legislature that the estate might always remain adequate security for Government revenue, it is necessary that the purchaser should get the estate in such a condition that he might be able to pay the Government revenue assessed thereon and that no act done by the proprietor after the settlement by which the estate became deteriorated, or rendered incapable of yielding the revenue, should be allowed to affect him. The auction purchaser, as is stated by Sis James Colvile in Forbes v. Meer Mahomed Hossain ('73) 20 W.R. 44, is entitled to a presumption founded upon the principle that every bigha of land is bound to pay and contribute to the public revenue unless it could be brought within certain exceptions recognised in the Act itself. In the present case, the plaintiffs do not bring their case within any of the exceptions mentioned in Section 37; their whole point is that the word under-tenure as mentioned in Section 37 means the whole of the under-tenure and not a part of it and the purchaser cannot annul a portion of an under-tenure. This reasoning is, I think, unsound. As the purchaser does not derive his title from the defaulting proprietor, it is wrong to describe him as a cosharer landlord, with regard to the tenure, and the principle of law which prevents the landlord from seeking partial eviction, cannot have any application to such case. If the purchaser is a cosharer the lease, so far as he is concerned, must be deemed to have been granted by the other co-owners to which he was no party. In such circumstances he can certainly recover joint possession to the extent of his own interest in the property. In this case the lands of the three touzis are separate and there is no difficulty in annulling the tenure so far as Touzi No. 335 is concerned. If the view taken by Ghosh and Bartley JJ., in the ease mentioned above is accepted, it would be open to every person to render the provision of Section 37 entirely nugatory. The only thing necessary would be to include the lands of another touzi when a tenure is created under a particular touzi, and the purchaser of either of the touzis would be altogether powerless to annul the tenure. There are indeed certain authorities which lay down that though the primary object of Section 37, Act 11 of 1859, is the protection of Government revenue, yet the section is intended to secure certain other objects also such as the prevention of undue inconvenience and hardships which might arise from subjecting the holders of encumbrances to a multiplicity of suits by different purchasers at one sale or to suits for partial cancellation of encumbrances at the instance of some out of several co-purchasers. A leading decision on this point is Jatra Mohan Sen v. Aukhil Chandra ('97) 24 Cal. 334 where some of the previous decisions on the point are quoted in the judgment of Banerjee and Gordon JJ. It was held in this case that when there were more purchasers than one, the right to annul an under-tenure must be exercised by all the joint purchasers, and cannot be exercised by one of them. I think on this principle we can support the decisions in Sooharam v. Durga Charan ('07) 5 C.L.J. 264 and Mahamed Guran v. Basarat Ali ('20) 7 A.I.R. 1920 Cal. 920 upon which M.C. Ghose J. purports to rely.
7. In Sooharam v. Durga Charan ('07) 5 C.L.J. 264 the plaintiff was the holder of a taluka potta under the auction purchaser of an estate with regard to a portion of the landa only which were comprised in the estate. He sued to evict an under-tenure holder, who had a tenure in respect of the lands in suit and certain other lands within the same touzi but not included in the plaintiff's potta. It was held that the plaintiff could not annul the under-tenure in part in this manner. The tenure could be set aside as to all the lands belonging to it, and this could be done either by the purchaser of the entire mahal or by some person to whom he had transferred, either the whole mahal, or all those lands of the mahal which were included in the taluka potta of the defendants. Here the lands of the under-tenure were all within the touzi that was sold, and it was held that the purchaser or any person claiming from him could not evict him only from a portion of the lands. This certainly causes hardship to the under-tenant and subjects him to multiplicity of litigation, and there may be good reasons, as said above, for disallowing such a suit. But that rule cannot have any application where the purchaser of an entire touzi seeks to annul the under-tenure so far as it is within that touzi. No question of hardship to the tenure-holder or risk of multiplicity of litigation arises in such cases. The auction purchaser has no right to the lands of the other touzia which might be included in the tenure, and to apply this rule in such cases would be to make the tenure unannullable altogether. The facts in Mahamed Guran v. Basarat Ali ('20) 7 A.I.R. 1920 Cal. 920 seem to be similar to those in Sooharam v. Durga Charan ('07) 5 C.L.J. 264 and the same principle was applied.
8. My conclusion, therefore, is that S.'37 does not assist the plaintiff in any way and the suit must fail. As the view we are taking is different from that taken by a Division Bench of this Court, we have no other alternative but to refer this matter to a Full Bench. We direct, therefore, that the appeal may be referred to a Pull Bench, and the following questions framed for their decision : (1) Whether a purchaser of an entire estate in the permanently settled districts of Bengal, sold for arrears of revenue, due on account of the same, can annul an under-tenure, which is created under the said estate as well as other estates, so far as it lies within the estate sold? (2) Is Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34 correctly decided? As the points referred arise in an appeal from appellate decree, the whole appeal is under the rules of Court referred to the Full Bench.
9. This appeal arises out of a suit to set aside a sale for arrears of revenue of tauzi No. 835 of the 24-Parganas Collectorate, and in the alternative for a declaration that the sale cannot affect the interest of the plaintiffs who are patnidara of the mahal. The estate in question was the debuttar estate of certain deities who also were the proprietors of touzis Nos. 1078 and 1233 of the same Collectorate. The patni in suit covers the whole interests of all the three touzis and was created by a kabuliyat of 5th Aswin 1314 B.S. The case was originally contested on three main grounds, first that the Collector had no jurisdiction to hold the sale of the estate as there were in fact no arrears, secondly that there had been material irregularities in conducting the sale, and thirdly that the plaintiff's patni in any event was not liable to be annulled. The trial Court found against the plaintiffs on all grounds except the question of jurisdiction; on appeal the lower appellate Court agreed with the other findings of the trial Court, but sent the case back for taking further evidence on the question whether the sale had been held with jurisdiction. This point has been finally determined against the plaintiffs who do not now dispute it. The only point that is now urged is that the patni is not liable to be annulled. On this point the trial Court held that there was no reason why that portion of the patni which extends over estate No. 335 should not be annulled. The appellate Court held that in fact, though there was one lease, there were three separate patnis created thereby, and therefore agreed that the patni in respect of touzi No. 335 could be annulled.
10. If the view of the lower appellate Court is accepted, the case offers no difficulty; but if the lease is held to create one 'under-tenure' the question arises as to whether there is any bar by virtue of the terms of Section 87, Land Revenue Sales Act, 1859, to the annulment of a portion of such. These are then the two points which arise for decision in this appeal, the first, does the patni tenure create one under-tenure; secondly if so, can this be annulled in part. It may be stated that the lands of the three touzis are quite separate, but there is evidence that some of the holdings of rayats consist of lands of more than one touzi. In my opinion, the patni lease purports to create one tenancy. No doubt it gives in detail the nature of the a lands, the separate touzi numbers of the estates and their separate rentals, but this is totalled at Rs. 9500 and the whole is treated as one. The details appear to be given for descriptive purposes, to indicate in full the nature and terms of the lease and not for the purpose of creating three separate leases by one document. It is true that in paras. 11 and 14 where reference is made to the possibility of abatement of revenue on account of land acquisition proceedings or of increase of cess respectively, there is provision for proportional variation of the patni rental, and from this it can be urged that variation would be according to the change in the revenue of each touzi separately, and hence of the corresponding separate patni. Further the schedule of the rental and kists is unnecessarily detailed if the document is considered as creating one whole lease for Rs. 9500 since it shows separately the amounts due touzi by touzi and kist by kist; but on the other hand the items are also totalled for each touzi, as well as for each kist, and the total of Rs. 9500 is also shown. Taking all the terms of the lease together, however, I am of opinion that it is intended to create and does create one tenure.
11. It remains to be decided whether such a tenure can be annulled, so far as it is under touzi No. 835. Mr. Gunada Charan Sen, arguing the case for the appellants, relies on an unreported decision of M.C. Ghose and Bartley JJ. in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34. In that case there were the five estates which jointly held all the lands comprised therein, and the under-tenure was under all the estates; one only of the estates was sold. M.C. Ghose J. after discussing the case in Sooharam v. Durga Charan ('07) 5 C.L.J. 264, and a later case in Mahamed Guran v. Basarat Ali ('20) 7 A.I.R. 1920 Cal. 920, which purported to follow the former case, observed:
It appears that it has been accepted in the past that Section 37 is to be strictly construed so as to give what protection may reasonably be given to under-tenants. The section states that the auction purchaser of an entire estate shall acquire the estate free from all encumbrances and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants. Taking the words in their natural meaning it is clear that theauotion purchaser is entitled to eject all under-tenants who hold their land entirely within his estate, but he is not entitled by the section to eject an under-tenant who holds an under-tenure partly within his estate and partly within other estates.
12. Bartley J. observed that 'the section does not contemplate the avoidance on annulment of a part of an under-tenure.' In considering this matter an important distinction has to be borne in mind, namely that between, on the one hand, annulment of a portion of a. tenure, the whole of which is held under one estate, and on the other hand, annulment of a portion of a tenure such portion being the whole of the tenure held under a particular estate, the whole tenure being held under two or more estates. In the first case the party seeking to annul is not performing the whole of what he has authority to do by virtue of the purchase in the revenue sale : in the second case (if he can do it at all) he is annulling all that is his to annul by virtue of the purchase. To prohibit the first form of partial annulment can in no way jeopardize the revenue : to hold that the second form is not permissible is to say that there is available an easy means of defeating the stringent provisions of the revenue laws dating from the time of the permanent settlement to the effect that zemindars cannot create interests which shall not be voidable at the time of sale for non-payment of arrears of revenue. Until the recent case of 1936 there is no clear authority that annulment of this second type is not possible. The case in Sooharam v. Durga Charan ('07) 5 C.L.J. 264 is clearly one of annulment of a portion of a tenure, the whole of which tenure was held under one estate. The party seeking to annul the portion of the tenure in that case was himself merely a holder of a taluqa potta from the revenue sale purchaser of 86 dags of land which formed part of an entire mahal, and the tenure which he sought to annul consisted of 10 dags out of his 36 dags together with other lands of the zemindary which were not claimed by the plaintiff nor contained in his taluqa potta. It was held that:
The tenure, if sought to be set aside, must be set aside in toto and as to all the lands belonging to it, and this can only be done either by the purchaser of the entire mahal or by some person to whom he has transferred either the whole mahal or all those lands of the mahal which are included in the taluqa potta of the respondents.
13. The later case in Mahamed Guran v. Basarat Ali ('20) 7 A.I.R. 1920 Cal. 920 purports to follow the earlier case just considered, but the actual facts are not very clear. The suit was for recovery of khas possession of lands appertaining to a taraf, the plaintiff being the grantee of a sadar patni taluka right with the rights of an auction purchaser, apparently in the whole taraf. The Munsif held that some of the dags which were not included in the plaintiff's patni appertained to some other mahals, and he granted a decree for annulment of the interest of the defendants as to the rest. The Subordinate Judge held, referring to Sooharam v. Durga Charan ('07) 5 C.L.J. 264, that the dags not being included in the plaintiff's patni he was not entitled to set aside the defendants' tenure; but it is not clear whether he agreed with the Munsiff's finding that these dags belonged to other mahals or not. The learned Judges of this Court adopted the findings of the Subordinate Judge with the result already mentioned, and explicitly stated that on these findings the case was governed by Sooharam v. Durga Charan ('07) 5 C.L.J. 264. Two other cases decided by Maclean C. J., and Banerjee J. have also been discussed at the bar, and were mentioned in the recent case of 1936, namely, Kamal Kumari Choudhurani v. Chandra Roy ('98) 2 C.W.N. 229 and Preonath Mitter v. Kiran Chandra Roy (1900) 27 Cal. 290. In each of these the main question in issue was whether the purchasers of an estate consisting partly of undivided shares in mouzas or villages whereof the remaining shares appertained to other estates the plaintiffs could be regarded as purchasers of an 'entire estate.' In the former case there was a further question as to whether the proprietors of the other estates were necessary parties in a suit to avoid an under-tenure. In both cases it was held that the estate was an 'entire estate.' In respect of the latter case it is urged by Mr. Atul Gupta appearing for the respondents that the facts show that the under-tenure in question was held partly under the other estates: but though there is no explicit statement in the judgment one way or the other, I think this was not so. The sentence
all that the plaintiffs really ask for (as will appear from para. 6 of the plaint) is not direct or actual possession of the land, but indirect or constructive possession by receipt of rent to the extent of their share from the cultivating tenants, upon declaration that the intermediate tenure set up by the defendants has been cancelled by the sale for arrears of revenue.
seems opposed to the view contended for by Mr. Gupta. Had this been otherwise, the case could have been cited as in pari materia with the present. In the unreported case in appeal from Kali Prasanna Guha Chowdhury v. Bulgazi Appeal from Appellate decree No. 11 89 of 1894 the tenure in question was clearly of the type under discussion here, being a tenure jointly created by the proprietors of two estates in eight annas share each. The suit was for khas possession in respect of the eight annas share of one estate and it was dismissed on the ground that the proprietors of the estate to which the remaining share appertained had not been made parties; by implication, it appears to have been held that there would have been no bar to the annulment of the portion of the tenure under the estate which had been sold for arrears of revenue, for the learned Judges remark:
In substance the suit is for the recovery of khas that is exclusive possession of an 8 annas share of the lands comprised in the estate, the claim for the avoidance of the tenures being merely ancillary.
14. This case was discussed in Kamal Kumari Choudhurani v. Chandra Roy ('98) 2 C.W.N. 229 with reference to the need for making the co-owners parties to the suit, and distinguished on the ground that in the former case actual khas possession of the land was desired, while in the later case mere power for joint collection of rent was prayed for. Thus prior to the recent case of 1936 this appears to be the only one clearly dealing with facts similar to those in the present case relating to a tenure under more than one estate, and the decision favours the view that in such a case annulment of that portion of the tenure which is held under the estate sold for arrears of revenue can be made. Prom the history of the sale laws it would be indeed strange if proprietors of estates could create an interest which would defeat the prime object thereof, namely the safeguarding of the public revenues. Enforcement of collection of the revenue by means of sale of estates was introduced by the British, and a fundamental necessity of the provision for such enforcement by sale of estate is that what is sold shall be the estate originally created unchanged except as allowed by the law. Article 6 of the Permanent Settlement Regulation, 1 of 1793, lays down the provision for sale for default and in Article 9 of the same regulation it is laid down that:
If any zemindar...shall dispose of a portion of his lands as a dependent taluk, the jama which may be stipulated to be paid by the dependent talukdar will not be entered upon the records of Government, nor will the transfer exempt such lands from being answerable, in common with the remainder of the estate, for the payment of the public revenue assessed upon the whole of it, in the event of the proprietor or his heirs or successors, falling in arrear from any cause whatever, nor will it be allowed in any case to affect the rights or claims of Government, any more than if it had never taken place.
15. The early history of this matter is clearly related in the preamble to the Patni Taluks Regulation 1819:
By the rules of the perpetual settlement proprietors of estates paying revenue to Government that is, the individuals answerable to Government for the revenue then assessed on the different mahals were declared to be entitled to make any arrangements for the leasing of their lands in taluk or otherwise that they might deem most conducive to their interest. By the rules of Regn. 44, 1793, however all such arrangements were subjected to two limitations; first that the jama or rent should not be fixed for a period exceeding ten years, and secondly that in case of a sale for Government arrears, such leases or arrangements should stand cancelled from the day of sale.
16. Here then we have the earliest provision of what is now embodied with some amendment in Section 37, Land Revenue Sales Act, 1859. The preamble goes on to point out that despite the bar in Section 2 of Regn. 44 of 1793 limiting the period of engagements to ten years, some taluks and other leases in perpetuity had been created. The bar was removed by Regns. 2 and 18 of 1812, but it had not been declared that the leases irregularly created prior to these regulations were valid. The declaration was therefore made in Section 2 of Regn. 8, but again with a proviso to preserve the liability to cancellation on sale for arrears of revenue. The important point is that the power to create leases was not any inherent right of the zamindars but one declared by the regulations and always declared as subject to the liability of cancellation on sale for arrears of revenue. Various regulations were passed in subsequent years dealing with the law as to sale of estates for arrears which need not here be discussed, until we come to Regn. 11 of 1822. As Field notes in his Introduction to his Regulation of the Bengal Code:
Although the whole of Regn. 11 of 1822 has been repealed by more recent legislation, many of its most essential provisions are to be found in the existing Sale Law. (Paragraph 104).
17. In this regulation we find the first exception to the rule that all encumbrances were avoided on sale, and by it khudkhast kadimi rayats or resident and hereditary cultivators were not to be ejected by the auction purchaser, though their rents might be enhanced after service of notice. (Field, para. 104). A similar exception is now repeated in the proviso to Section 37, Land Revenue Sales Act, 1859. The next important enactment was Act 12 of 1841. Section 27 of which provided that:.the purchaser of an estate sold under this Act, for the recovery of arrears due on account of the same, in the permanently settled districts of Bengal, Behar, Orissa and Benares, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement, and shall be entitled after notice given under Section 10, Regn. 5, 1812, to enhance at discretion (anything in the existing Regulations to the contrary notwithstanding) the rents of all under-tenures in the said estate, and to eject all tenants thereof, with the following exceptions.
18. The exceptions correspond approximately to those contained now in Section 37 of Act 11 of 1859. The above quoted provisions appear again verbatim in the next Act on the subject in Section 26 of Act 1 of 1845. As Field notes (paragraph 122):
These provisions were re-opened with slight modifications four and a half years afterwards in Act 1 of 1845, and are still to be found in almost their original form in Act 11 of 1859. Thus the Legislation of 1841, 48 years after the permanent settlement, at length settled the general principles by which sales of land for recovery of arrears of rent were to be regulated. When 18 years afterwards, in 1859, fresh limitation was considered advisable in connection with this subject, the occasion for such regulation arose, not so much from any necessity of altering the working of the law as then settled, as from the expediency of affording protection to new interests which had sprung into existence during a further period of progress and prosperity.
19. It will be seen then from this that the fundamental and guiding principle throughout this legislation is the protection of Government revenue : proprietors with whom permanent settlements were made were empowered to grant leases and other engagements subject to the right of sale free of encumbrances necessary to protect the revenue. Subsequent legislation regulated the matter of sales and in particular widened the protection which at first was only given to tenures existing at the time of the permanent settlement. The protection is given however by way of exception to the general provision for annulment and avoidance of encumbrances and tenures which provision was essentially necessary in order to protect the revenue.
20. If then we are to hold that an under-tenure appertaining to more than one estate cannot be annulled at all, on the ground that a portion of an under-tenure cannot be annulled, we are to hold that there was a serious leakage in this long-standing legislation for protection of the revenue. By adding to a tenure under one estate some small token holding under another estate the tenure so created is to become immune from the stringent provisions of the sale law. It can be stated confidently that such a : result was certainly never intended; the only question is whether we are forced by the wording of Section 87 to come to a finding that such a leakage exists. I think this is clearly not so, the operative part, so to speak, of Section 37 must be held to be all inclusive, and all the exceptions are as stated explicitly in that section. A tenure under two or more estates cannot be held to be protected because of an omission in the operative part of Sectio9n 37 to provide for its annulment. In short the portion of such a tenure which is held under the estate sold must, for the purpose of Section 87, be held to be either an encumbrance within the meaning of that section or else must be deemed to be itself an under-tenure for the purposes of the section. The rest of the operative part of Section 87 is wide enough to cover anything that the proprietor can create or allow to come into existence to the detriment of the value of the estate and the only items that can pass through it are those provided expressly in the exceptions. It is essential that this should be so for it to perform its prime function of protecting the revenue. It is no doubt correct that Section 87 is to be strictly construed so that the protection it gives by its exceptions shall be available to under-tenants and its benefits shall only be available to a purchaser who duly acts under its terms; it is quite another matter to say that it must be strictly construed so that a proprietor may by a device create a form of tenure not subject to its terms and so as to defeat the prime object for which it was enacted.
21. In Turner Morrison & Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931 the distinction between encumbrances and under-tenures has been pointed out, the former being wiped by the sale itself, the purchaser being entitled in the case of the latter 'to avoid and annul' them. In view of this distinction I would hold that where a tenure is created under more than one estate each portion appertaining to each estate is for the purpose of Section 37 of Act 11 of 1859 an under-tenure under that estate, and hence that the purchaser of such estate is entitled to annul and avoid the tenures to the extent to which it appertains to the estate he has purchased. This view is strengthened by consideration of the terms of the Act of 1859 itself relating to registration. It is evident that if such a tenure as that under consideration here is to obtain the protection of registration, it would be necessary for it to be registered in respect of each estate under which it is held. The only difference between the facts of the present case and those in S.A. No. 797 of 19361 are that the lands of the three touzis in the present case are separate, while in the latter case they were held jointly by the five estates concerned. In my opinion, this difference can in no way affect the question whether a tenure created jointly by the estates can be avoided or annulled under Section 37 by a purchaser of one of the estates in a revenue sale to the extent to which it appertains to the estate purchased. I agree, therefore, that it is necessary to refer this case to a Full Bench, as, for the reasons given, I am of opinion that that case was not correctly decided and it is otherwise binding on us in this appeal.
22. The facts which are not in dispute in the second appeal which has been referred to this Full Bench are these: Certain idols named Sree Sree Gopal Nath Jew and others were the proprietors of Touzi Nos. 335, 1078 and 1233 of the 24 Parganas Collectorate. On 22nd September 1907, the shebaits of these idols granted a patni lease of the lands covered by these three touzis in favour of the predecessors-in-interest of the appellants. On 23rd September 1936, one of these three touzis namely, touzi No. 335, was sold for arrears of revenue and was purchased by the respondent. The appellants then brought a suit in the Court of the Subordinate Judge at Alipur to have the sale set aside. In the alternative they prayed for a declaration that the revenue sale did not affect their patni interest in the lands of the touzi sold. The trial Judge set aside the revenue sale. On appeal by the respondent to the lower appellate Court, the decree of the trial Judge was set aside and the case was sent back to the trial Judge to determine whether the revenue sale was without jurisdiction. The trial Judge, after the remand, came to the conclusion that the Collector had jurisdiction to hold the sale. The appellants thereupon preferred a second appeal to this Court. This appeal was heard by a Division Bench. Two contentions were raised by the appellants before the Division Bench, (1) that the patni lease of 1907 did not create three separate tenures under the three estates but only one single tenure under the three estates, and (2) that the revenue sale pur-chaser (respondent) could not annul the patni so far as it related to the lands of Touzi No. 835. On the construction of the lease of 1907, the Division Bench accepted the first of these two contentions. Mr. Gupta, appearing on behalf of the respondent, intimated to us in the course of the hearing of this reference that he would not challenge this finding of the Division Bench. As regards the second contention of the appellants, the Division Bench were of opinion that the respondeat was entitled to annul the patni so far as it related to the lands under Touzi No. 335. But as this was opposed to the view taken by this Court in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34, the Division Bench has referred the following questions of law to the Full Bench for final decision:
(1) Whether a purchaser of an entire estate in the permanently settled districts of Bengal sold for arrears of revenue due on account of the same, can annul an under-tenure which is created under the said estate as well as other estates so far as it lies within the estate sold. (2) Is the case in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34 correctly decided?
23. As the questions have arisen in an appeal from an appellate decree, the whole appeal is now before us for disposal. Section 37, Revenue Sale Laws, is in these terms:
The purchaser of an entire estate in the permanently settled districts of Bengal (Bihar and Orissa), sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants, with the following exceptions:
First - Istimrari or mukarari tenures which have been held at a fixed rent from the time of the permanent settlement.
Secondly - Tenures existing at the time of settlement, which have not been held at a fixed rent;
Provided always that the rents of such tenures shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures.
Thirdly - Talukdari and other similar tenures created since the time of settlement and held immediately of the proprietors of estates, and farms for terms of years so held when such tenures and farms have been duly registered under the provisions of this Act.
Fourthly - Leases of lands whereon dwelling houses, manufactories, or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk.
And such a purchaser as is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was originally an unfair rent, and if the same shall not have been held at a fixed rent, equal to the rent of good arable land for a term exceeding twelve years; but not otherwise.
Provided always that nothing in this section contained shall be construed to entitle any such purchaser as aforesaid to eject any raiyat, having aright of occupancy at a fixed rent or at a rent accessible according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do.
24. It is not disputed that the entire Touzi No. 335 has been sold under Act. 11 of 1859 and has been sold for the recovery of arrears due on account of the same. Admittedly, the respondent is the purchaser of the entire estate. The controversy is whether the portion of the appellants' patni within Touzi No. 335 is (a) an encumbrance imposed upon the estate, or (b) an under-tenure, or (c) neither. If (a) the section makes it void; if (b) the section makes it voidable. The appellants' contention is that it is neither and that it therefore remains intact in spite of the revenue sale, on the general principle that rights of property remain unless clearly taken away and on the special ground that the object of Act 11 of 1859, as stated in the preamble, is to protect under-tenures. Before proceeding to examine this contention in detail, we would refer to cectain observations of the Judicial Committee upon the general effect of Section 87 of Act 11 of 1859, and of the analogous Section 26 of Act 1 of 1845 which was its immediate predecessor. In Surja Kanta v. Sarat Chandra ('14) 1 A.I.R. 1914 P.C. 82, which was a case under Act 11 of 1859, the Judicial Committee said:
It was admitted by Mr. De Gruyther on behalf of the appellants that on the failure of an owner to pay the Government assessment, his estate or interest in the1, land is forfeited or rather determined and that under such a sale as that which took place in this case, what was sold was not the interest of the defaulting owner but the interest of the Crown, subject to the payment of the Government assessment.
25. This observation was repeated by their Lordships in Narayandas Khetry v. Jatindra Nath Roy which was also a case under the Act of 1859. In Forbes v. Meer Mahomed Hossain ('73) 20 W.R. 44 which was under the earlier and analogous provisions of the Act of 1845 (the revenue sale having been held in 1850), they said:
The statutory title which the law gives to an auction purchaser is that, for the protection of the revenue and in order to ensure its payment by him and to avoid the necessity of repeated sales of the property, he is remitted to all those rights which the original settler at the date of the perpetual settlement had; and may, in consequence of that, sweep away or get rid of all the intermediate tenures and incumbrances created by preceding zemindars since that date.
26. We have to bear these general observations in mind in deciding the questions before us. If we find that of two rival interpretations of Section 37 of the Act of 1859, one would be in accordance and the other at variance with what their Lordships have said, we should be justified in preferring the former, unless for compelling reasons we must accept the latter. A compelling reason would be that the Act had expressly saved a particular right or interest from being swept away by the revenue sale. The interpretation for which the appellants contend would conflict with the observations which we have quoted, for it would leave on the estate an interest with which the dafaulting proprietor had burdened it after the date of the permanent settlement. The result would be that the auction purchaser would not be 'remitted to all those rights which the original settler at the date of the perpetual settlement had,' nor to use the language of the later cases, would he get 'the interest of the Crown, subject to the payment of the Government assessment.' Unless the appellants can show compelling reasons in support of a contention which has this result, we cannot accept it. This brings us to the language of Section 37 of the Act. The appellants do not claim that their interest has been expressly saved by any of the exceptions; but they claim that it has not been hit by anything contained in the body of the section. They contend (1) that the portion of their patni which is comprised in Touzi No. 335 is not an under-tenure within the meaning of the section and (2) that it is not an encumbrance imposed on the estate. Let us examine each of these propositions. The term 'under-tenure' is not defined in Act 11 of 1859. But one of the paragraphs of the preamble which begins:
And whereas it is expedient to protect the holders of registered under-tenures created since the settlement and not resumable by the grantors or their representatives from loss by the avoidance of their tenures,
27. indicates that the Act uses the terms 'under-tenures' and 'tenure' as synonymous, Indeed, Section 37 itself uses one of these terms in the body of the section and the other in the exceptions, no apparent distinction being intended between them. A definition of the term 'tenure' occurs in Section 1 of Act 7 of 1868 which provides that in that Act and in Act 11 of 1859, the word 'tenure' includes all interests in land, whether rent paying or lakhiraj (other than estates) and all fisheries which, by the terms of the grants creating the same or by the custom of the country, are transferable, whether such tenures are resumable or not and whether the right of selling or bringing them to sale for an arrear of rent may or may not have been specially reserved by stipulation in any instrument. This definition does not contain the qualifying words 'unless there is anything repugnant in the subject or context' which are usually inserted in modern drafting. But these words are always to be understood. In Knightsbridge Estates-Trust Ltd. v. Byrne (1940) 1940 A.C. 613 at page 621 the Lord Chancellor observed:
It is perhaps worth pointing out that the words, unless the context otherwise requires' which we find in the consolidating Act of 1929 are not to be found in the amending Act of 1928. I attribute little weight to this fact, for in my opinion some such words are to be implied in all statutes where the expressions which are interpreted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character.
28. We have no doubt that the definition of 'tenure' in the Act of 1868 was not intended for the interpretation of Section 37 of the Act of 1859, for if only transferable tenures were meant in Section 37 - which would be the result of applying the definition - it would follow that whereas the auction purchaser could annul transferable tenures, he could not annul those which were not transferable; in other words, he could annul the larger grant, but not the smaller. This would be absurd. The context therefore requires that the word 'under-tenure' in Section 37 of the Act of 1859 should not be interpreted by applying the definition in the Act of 1868. If there is no definition, the appellants argue that we must give the word its natural meaning and they contend that the natural meaning of 'under-tenure', with reference to an estate, is a tenure wholly under that estate and the whole of that tenure. The decision of this Court in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34 supports this contention, although the earlier decisions relied upon therein were given, as to one of them, in a case where the under, tenure was wholly within the defaulting estate and, as to the other, in a case whose facts are not clear from the reports. The appellants find further support for their contention in the fact that the term 'tenure' as used in Section 38 and the following sections which deal with the protection of tenures by registration is, as shown by the requirement of Section 40, necessarily limited to integral tenures lying wholly within the relevant estate. They accordingly argue that where a tenure is under more than one estate, as in the present case, the portion of the tenure lying in any particular estate is not an under-tenure of that estate within 'the meaning of Section 37. This is the first branch of their contention. The other branch is that I whatever is an under-tenure or in the nature of an under-tenure is not an encumbrance within the meaning of Section 37. They seek support for this contention in the judgment of the Judicial Committee in Turner Morrison & Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931.
29. We shall deal first with this latter contention. In a general sense, 'encumbrance' would include any burden on property, any right or interest created by the owner in limitation of his own. This is the sense in which the term is used, for example, in Section 161, Ben. Ten. Act. As another example, we may refer to Section 3 of the Putni Taluks Regulation where clause (2), after declaring that patni talukdars may let out the lands of their taluks in any manner they may deem most, conducive to their interest, goes on to provide that no such engagements shall operate to the prejudice of the right of the zamindar to hold the superior tenure ansWerable for any arrear of his rent, in the estate in which he granted it, and free of all incumbrance resulting from the act of his tenant. In other words, the act of sub-letting is regarded as creating an incumbrance. Yet another ex-ample may be found in Section 11 of the same Regulation. This is the general meaning of the term. But, as implied in Turner Morrison & Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931 the term as used in Section 37 is exclusive of what-ever is an under-tenure within the meaning of the section. The taluk in question in that case was such an under-tenure. If, however, the patni interest in question in the present case is not an 'under-tenure' within the meaning of the section (as the appellants in the first branch of their argument contend that it is not), there is no ground left for excluding it from the scope of the term 'encumbrance.' Turner Morrison & Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931 affords no authority for the proposition that even where a subordinate interest is not an under-tenure within the meaning of Section 37 but is merely in the nature of an under-tenure, it cannot be classed as an encumbrance. To stretch the actual decision in that case beyond its true limits and to saddle the estate in the auction purchaser's hands with a new class of interests which are neither void as encumbrances nor voidable as under-tenures within the meaning of Section 87, would be to invite conflict with those general observations of the Judicial Committee to which we have already referred. We must decline to do so. The result is that in order to succeed in the second branch of their contention, the appellants must abandon the first and must concede that the interest in question is an under-tenure within the meaning of the section. We see no great difficulty in holding that it is such an under-tenure.
30. It is no doubt true that when we speak of a tenure we usually mean the tenure in its integrity; but where a tenure extends over more than one estate, that part of it which is under one of the estates may, without undue straining of language, be called an under-tenure in that estate, if the context so requires. To insist that an under-tenure, to be voidable under Section 87, must be wholly and exclusively within the defaulting estate would by parity of reasoning require that an encumbrance, if it is not to survive the revenue sale, must be wholly and exclusively upon the estate, so that a mortgage extending over more than one estate would remain intact, even as to the portion within the estate. We cannot hold that such was the intention of the Legislature. Nor do we find any insuperable obstacle in the consideration that the tenures for which protection has been provided in the succeeding sections are, judging from the requirements of Section 40, those wholly within the defaulting estate. At most, the difficulty involved here is that of holding that the word 'under-tenure' or 'tenure' has been used in a larger sense in one section and a narrower sense in another. This is not unusual in statutes; indeed, the qualifying words 'unless the context otherwise requires' often found in statutory definitions are expressly meant for the purpose of permitting such variations. Words must take their colour from the context and need not have the same meaning in every section.
31. Accordingly, we hold that the patni interest in question in this case, so far as it is under Touzi No. 335 is an under-tenure in that estate within the meaning of Section 37 and annullable as such. It is a point in favour of this view that the only alternative possible without contravening the Judicial Committee's observations would be to class it as an encumbrance, the result of which would be to make it void instead of voidable. Our view therefore gives it some measure of protection, however precarious, rather than none at all. It may not be irrelevant to point out that the preamble to Act 11 of 1869 speaks of providing for registration of dependent taluks and of protecting the holders of registered under, tenures. Therefore, where an interest falls outside the scope of the sections relating to registration as in the present case no argument for its effective or assured, protection can be drawn from the preamble. Our answers to the two questions referred to us are therefore as follows : (1) Whether a purchaser of an entire estate in the permanently settled districts of Bengal sold for arrears of revenue due on account of the same can annul an under-tenure which is created under the said estate as well as other estates so far as it lies within the estate sold.... Yes. (2) Is the case in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in ('38) 70 C.L.J. 34 correctly decided?.... No. On the view we have taken, the appeal out of which this Reference has arisen must be dismissed. The parties will bear their own costs in all Courts.