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Bibi Sakina Khatoon W/O Dr. Muhammad Ali Vs. Kshirode Chandra Manna and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1942Cal173
AppellantBibi Sakina Khatoon W/O Dr. Muhammad Ali
RespondentKshirode Chandra Manna and ors.
Cases ReferredNirmal Nalini v. Harsamukhi Dasi
Excerpt:
- .....under section 28, and delivery of possession given to him on 26th august following. the sale was a joint sale of the two shares, and it is impeached on this ground as illegal, being contrary to the provisions of section 13. a further point is also taken that the notice of sale under section 6 had not been properly drawn up. it is also alleged that the sale processes had been suppressed. the defaulting proprietors had appealed to the commissioner of the division on these grounds. the commissioner recommended to the board of revenue that the sale should be annulled, but the board refused to accept the recommendation. this led the plaintiffs to commence the present suit.2. both courts found against the plaintiffs as regards the alleged non-service of sale processes, and the only questions.....
Judgment:

Biswas, J.

1. This appeal arises out of a suit for setting aside the sale of a khas mahal estate in the Sunderbans for default in payment of arrears of revenue, and the appellant is the defendant purchaser at such sale. The learned Munsif of Diamond Harbour who tried the suit in the first instance dismissed it, but that judgment was reversed on appeal by the learned Additional District Judge of 24-Perganas. Hence the present appeal. The property sold is described as P. plot, 4th part of lot Sunderban, Mouza Gobindapur, P.S. Mathurapur, and it was held by a number of cosharer lessees. At the instance of the cosharers, twelve separate accounts were opened in respect of the mahal under Section 10 of Act 11 of 1859 according to their respective shares one of which was numbered 2960/7, the residuary share being recorded as No. 2960. The former represented a five gandas share and the latter a two annas share. The plaintiffs are interested in the residuary mahal. Both these separate accounts fell into arrears, mahal No. 2960/7 to the extent of Rs. 17 odd on account of the fourth kist of 1933-34 and the first kist of 1984-35, and the residuary mahal to the extent of Rs. 37 odd for the first kist of 1934-35 only. The defaulting shares were accordingly advertised for sale under the provisions of the Act, and sold on 24th September 1934, when they were purchased by the present appellant for a sum of Rs. 60. A sale certificate was in due course issued to the purchaser on 3rd July 1935 under Section 28, and delivery of possession given to him on 26th August following. The sale was a joint sale of the two shares, and it is impeached on this ground as illegal, being contrary to the provisions of Section 13. A further point is also taken that the notice of sale under Section 6 had not been properly drawn up. It is also alleged that the sale processes had been suppressed. The defaulting proprietors had appealed to the Commissioner of the Division on these grounds. The Commissioner recommended to the Board of Revenue that the sale should be annulled, but the board refused to accept the recommendation. This led the plaintiffs to commence the present suit.

2. Both Courts found against the plaintiffs as regards the alleged non-service of sale processes, and the only questions left to be considered in the appeal therefore are, first, as to the propriety of the notice under Section 6, and secondly, as to the legality of the joint sale. On both these points, the Courts below differed, the learned Munsif holding against the plaintiffs and the learned District Judge deciding in their favour. We think the appellant is right in his contention that the plaintiffs' objections to the notice under Section 6 of the Act are not at all well founded. The alleged defects which are supposed to vitiate the notice are on the one hand that it does not mention all the necessary particulars, and on the other, that some of the particulars it mentions are inaccurate and misleading. As regards the errors of omission, the complaint is that it does not specify the name of the mouza or the sadar jama of the whole estate, and further, that the kists in arrear and the latest dates of payment are not separately shown for the two defaulting separate accounts. As regards the inaccurate particulars, it is alleged that the notice actually gives a wrong statement of the kists in default.

3. Mr. Chakravarti for the plaintiffs-respondents did not himself press the first category of objections before us. As an essential condition of the validity of a sale for arrears of revenue under Act 11 of 1859, the Court will doubtless insist on strict compliance with the requirements of the law regarding the issue of the notification of sale, but as to what particulars a notice under Section 6 must contain, the Act gives no direction beyond providing in the section itself that it shall specify 'the estates or shares of estates which will be sold,' and then, in Section 13, that where the Collector has opened a separate account or accounts, the share or shares to be excluded from the sale shall also be specified. These provisions, in our opinion, must be construed with reference to the object which a notice of sale has in view, namely, that as the Judicial Committee of the Privy Council explain in Raveneshwar Prasad Singh v. Baijnath Ram Goenka ('15) 2 A.I.R. 1915 P.C. 24 it must enable likely purchasers to know exactly what is going to be sold, and to ensure thereby reasonable competition. The teat of a valid notice under Section 6 must therefore be as to whether the specification of the estate or share of an estate therein, as the case may be, is sufficiently definite from this point of view, and as the Judicial Committee also point out in the above ease, no hard and fast rule can be laid down as to what will constitute such sufficiency. It must depend upon the particular facts of each case: see also the observations of Ghosh J. in the Pull Bench decision in Ismail Khan v. Abdul Aziz ('05) 32 Cal. 502.

4. It is true that the Board of Revenue has issued special rules and also prescribed special forms for drawing up the notice of sale, which will be found in the Government Manual of the Revenue and the Patni Sale Laws, but these have no statutory force, not being framed under any authority conferred by the Act. They are in the nature of administrative directions to Government's own officers and have evidently been laid down with a view to avoid the chance of an incomplete specification. This means, in other words, that if the rules and forms are observed, the possibility of an objection is obviated almost to a certainty, but it does not follow that if any of the particulars therein specified are omitted, the omission will necessarily vitiate the notice, even though the particulars given may be sufficient to identify the estate or share of an estate to be sold, and give prospective buyers full information as to what they are invited to bid for. The mistake which the learned District Judge made in the present ease was to treat these rules and forms as though they were statutory directions which required to be literally complied with.

5. The property advertised for sale here was not the whole estate, but only two shares which were correctly specified. As for non-mention of the mouza, this was not at all a material omission. It may be pointed out that there is expressed authority that either in selling an estate or selling a share in an estate, it is unnecessary, and it may in fact not be possible always from the Collector's records, to specify the mouza or mouzas of which the estate or the share is composed : see Amirunessa Khatoon v. Secretary of State ('84) 10 Cal. 63 and Ram Narain Koer v. Mahabir Pershad Singh ('86) 13 Cal. 208 at p. 217. As the whole estate was not going to be sold, the omission of the sadar jama of the whole estate was also not fatal: this could not possibly mislead the bidders. It is not disputed that the sadar jamas of the shares which were exposed to sale were duly given. There was also a specification of the arrears due from each separate account. As already stated, one of the defaulting shares was in arrears for two kists, namely, the fourth kist of 1933-34 and the: succeeding kist, the first of 1934-35, whereas the arrears due from the other share was only for the last of such kists, namely, the first kist of 1934-35. This was correctly shown, but it appears that only one latest date of payment was given in both cases-28th June 1934. This was, however, accompanied by a statement that the instalments in respect of which the notice was issued were due on or before 22nd Jaistha 1341 B.S., being the last day of that Bengali month and corresponding to 14th June 1934. These unpaid amounts clearly, therefore, became 'arrears of revenue' within the meaning of Section 2 of the Act before the latest date of payment specified. This we consider to have been quite sufficient, and no bidder could possibly be prejudiced. The information given was enough to satisfy intending purchasers that the sale was going to be held on a proper date. All the objections taken to the validity of the notice on- the ground of its insufficiency thus fail. As regards the plaintiffs' next point that the notice contains a wrong specification of the kists for the arrears of which the sale was to be held, it seems to us, as the appellant points out, the objection is based on an entire misapprehension. The original notice is not on the record, but on the strength of a certified copy, Ex. 7, which the plaintiffs put in, they show that at the foot of the notice occurred a statement which reads as follows:

The Government revenue of the said mahal for the realisation of which the sale will be held is the amount which was due on or before 19th Bhadra 1338 B. S. and of which the latest date of payment is 11th Aswin 1348 B. S. following, corresponding to 28th September 1931.

6. This could possibly have no reference to the mahal in question in this case, and is undoubtedly inconsistent with what was stated in the body of the notice and in the various columns set out therein. For one thing, the sale date was given as 24th September 1934 in the first part of the notice, and it would be ridiculous to suggest that the arrears for which the sale was going to be held were not recent arrears as shown in the appropriate columns therein, but past arrears of the year 1931. The discrepancy would itself be so glaring that we do not suppose any one could conceivably be misled thereby. Any one reading the notice would at once reject this particular statement occurring in a foot-note, which is really not a part of the notice. As Mr. Jana further pointed out to us, the entry itself appears in the foot-note only as an illustration of how the direction contained in the foot-note was to be carried out in completing the printed form of the notice which was used. The original notice had been called for by the Munsif and it is significant that no such objection-was raised by the plaintiffs before him, which only shows that the original document would not have lent them any support. In our opinion, therefore, this particular objection which Mr. Chakravarty pressed with some instance before us must also. fail. There remains now to consider the question of the supposed illegality of the joint sale, a question on which there appears to be no direct authority one way or the other The answer must depend on a construction of the relevant sections of the Act, and not on any rules which the Board of Revenue may have promulgated, and which, as already explained have no statutory authority whatever. The first section to be considered is Section 13 which confers the authority to hold sales of separate shares of an estate for arrears of revenue. It provides as follows:

Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up to sale only that share or those shares of the estate from which, according to the separate accounts, an arrear of revenue may be due. In all such cases notice of the intention of excluding the share or shares from which no arrear is due, shall be given in the advertisement Of sale prescribed in Section 6 of this Act. The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion or the aggregate of the separate portions of jama assigned thereto.

7. The section makes it clear that there can be no sale of separate shares unless separate accounts have been opened. Secondly, it shows that a separate share for which a separate account has been opened cannot be put up to sale merely because that share is in default. The estate as a whole must itself be liable to sale for arrears. It was expressly ruled in Indra Mani Dasya v. Priyanath Chakravarty ('14) 1 A.I.R. 1914 Cal. 58 that the term 'estate' in the clause 'if the estate shall become liable to sale for arrears of revenue' means the entire estate out of which the separate share has been carved. The matter has since been put beyond the possibility of doubt by the decision of the Privy Council in Krishna Chandra v. Pabna Dhana Bhandar Co. Ltd , where it is definitely laid down that in order to justify the sale of a share in separate account (a) the estate must have become liable to sale for arrears of revenue, and, (b) an arrear of revenue must be due from the share according to the separate account. It may well be that though a separate share is in default, there is a surplus in the general account of the estate, and in that case, the share will be exempt from sale. It will further appear from the section that though under Sections 10 and 11 separate liabilities are created by the opening of separate accounts, the separate shares will still be deemed to constitute one integral estate. The object evidently is to preserve intact the ultimate security of Government for their revenue demand against the estate. That is indeed the paramount consideration governing the whole of this Act, and the next succeeding section shows how, notwithstanding the provision for sale of separate shares the security may and will be still enforced by bringing the entire estate to sale. By permitting the opening of separate accounts, the Act seeks no doubt in terms of its preamble to give recorded shares of a joint estate who pay their share of the sadar jama an easy means of protecting their shares from sale for the default of their cosharers, but there is no ultimate protection if the Government demand is still unsatisfied. In that case the scheme of the Act is that the whole estate shall be made to answer for the demand.

8. It is rather unfortunate that the Act, though it authorises the sale of separate shares under Section 13, still makes no express provision regarding the procedure for the holding of such sales. In the case of whole estates, a separate sale of each such estate seems to be clearly contemplated by Section 21, but, in the case of separate shares, where there are more than one to be sold on the same date of sale, there is no provision as to whether the shares should be put up separately one after another, or put up jointly in one or more Jots at the discretion of the Collector; and yet it is apparent that this is a matter of consequence, and not of mere form, which will lead to different results according as the one procedure or the other is followed. The question, as it seems to us, will, therefore, have to be decided with reference to the scheme of separate accounts as a whole as envisaged in the Act, apart from any light that may be thrown by the language used in any of the sections bearing on the matter. In other words, what has got to be considered is whether a joint sale or a separate sale will best carry out the purposes of the Act and be consistent with all its provisions.

9. One thing appears to be fairly certain, and it is that if a separate sale is held of each defaulting share in separate account, there can be no question of its contravening any of the provisions or declared objects of the Act. It has still to be seen whether a joint sale, if held, will be illegal. We may set out some of the considerations which ought to help towards a correct conclusion.

(i) A joint sale would, really defeat the object of opening a separate account. That object, as Sections 10 and 11 show, is to create 'separate liabilities' of the share for which a separate account is opened, and this means not only a separation of the liability to pay the revenue by apportioning a specific share to the separate account, but also a separation of the liability to be put up to sale for default. As Mitter J. points out in Manmatha Nath v. Ananga Kumar : AIR1941Cal702

the liability for sale of the separate account is separated from liability for sale of other separate accounts or of the residuary (share) that is left after the opening of the separate accounts.By a joint sale one defaulting share would be made to answer for the default of another which is the very thing that the opening of separate accounts is designed to prevent.

(ii) A joint sale would also involve the appropriation of the purchase money of one share towards the discharge of the arrears due from another, but this would be contrary to the provisions of Section 31 regarding the application of purchase money. The question as to the true meaning and effect of this section has already been the subject of judicial decision, and we see no reason for not accepting the interpretation which has been put upon it. In Nirmal Nalini v. Harsamukhi Dasi : AIR1939Cal233 it was contended on the terms of this section that the surplus sale proceeds of the share of an estate can be applied to the liquidation of all arrears due from the entire estate, but this contention was expressly overruled by both the learned Judges, Nasim Ali and Henderson JJ., who decided the case. It was pointed out that the word 'respectively' might not occur after the words 'the estate or share of an estate sold,' but all the same, if the Collector was to be at liberty to apply the surplus proceeds of the sale of any share to the satisfaction of the arrears of the whole estate, and necessarily, therefore, of the arrears due from other shares, there would have been no necessity for referring specifically to the share of an estate. The latter part of the section further showed that after the arrears due upon a separate account were discharged any surplus of the purchase money that might be left over, after meeting all other demands against it, must be held in deposit on account of the proprietor of that particular share. If, then, the purchase money of one defaulting share could not be applied for the benefit of another, it followed that a joint sale would be illegal.

(iii) Section 14, again, seems distinctly to point to a separate sale as the proper procedure. It provides that if in the case of a sale under Section 18, the highest offer for the share exposed to sale shall not equal the amount of arrears due 'thereupon,' the Collector shall declare that the entire estate shall be put up to sale on a future date, subject to certain conditions specified therein. The word 'thereupon' can only mean 'upon particular share which is exposed for sale.' Under the General Clauses Act, the singular may include the plural, but neither the subject nor the context here requires the extended meaning.

(iv) Then, again, a joint sale of two or more defaulting separate accounts may be unfair to other recorded sharers of the estate under Section 14. It will be seen that when due to the insufficiency of the sale proceeds of one share, the Collector makes a declaration under this section for the sale of the entire estate, the other cosharers are given a right to avert such sale by paying within ten days the arrear due from the share which was first put up to sale. If two or more shares are joined together in one sale, the burden of such payment is necessarily made heavier, and this might in effect defeat the right which the section gives.

(v) A joint sale may also work an injustice as between the several defaulting sharers. Thus, it may happen that one of the shares is subject to an incumbrance, but the other is not, and as under Section 37, only an entire estate, and not a share of an estate is sold free from incumbrances, it would be manifestly unfair to include a share on which there is no incumbrance in the same sale with a share which is burdened with an incumbrance. It might easily affect the bids, and thus prevent the proprietor of the share which is free from incumbrance from realizing the price which he might otherwise have obtained. It may again be that though a number of shares are advertised for sale, each being in arrear in its separate account, still the sale proceeds of one share may be sufficient not only to liquidate the arrears due upon that share, but thereby also to wipe out the demand in the general account of the estate. In such a case, as explained by the Judicial Committee in Krishna Chandra v. Pabna Dhana Bhandar Co. Ltd the other shares, though in default, could not yet be brought to sale. But by the holding of a joint sale, these other shares would be necessarily deprived of the chance of thus obtaining an exemption from sale. A joint sale from this point of view might really nullify the provisions of Section 13 as interpreted . by the Judicial Committee.

(vi) Another difficulty about a joint sale is that of determining how many or which defaulting shares are to be included in one sale. The Act gives no guidance whatever on the point, but it is only reasonable to suppose that some directions would have been, given if joint sales had been really contemplated. It is true that there is no specific provision in the Act regarding the order in which the separate accounts should be put up to sale, but Section 21 might be taken as a guide, and on the analogy of the rule therein laid down for the sale of estates, the numerical sequence in which the separate accounts are recorded might be followed. We are not unmindful that the order in which the sales are held might affect the interests of the defaulting sharers as between themselves.

10. Two main arguments were advanced on behalf of the appellant in support of a joint sale. One was based on a rule laid down by the Board of Revenue in Note 8 to Section 13 in the Government Manual, and the other on the words occurring in the last part of Section 13. As regards the first point, the Board's rule no doubt directs that 'all the shares of separate accounts of one estate which fall into arrears should be advertised for sale together and not separately, and should be put up to sale together,' but all that need be said about it is that this is not a statutory rule, and can have no legal effect whatever, if upon a construction of the Act a joint sale is found to be unwarranted. As regards the second contention, the words relied on are that the share or shares sold will be 'charged with the separate portion or the aggregate of the separate portions of jama assigned thereto,' special stress being laid on the reference to the 'aggregate' of separate portions of the jama. It is said that these words can have no possible application except in a case of joint sale. We do not think that is so. In our opinion, the language used is quite appropriate to cover a case where, on a separate sale, several separate accounts are purchased by one and the same person. All that is contemplated is that in such a case the several separate accounts will be merged into one in the hands of a common purchaser. We cannot hold therefore that the words referred to necessarily indicate a joint sale of a number of defaulting shares in one lot. It is not necessary to consider if the words are also meant to apply to a case of several separate accounts being held by one and the same recorded co-proprietors before the sale.

11. It might be relevant to notice another argument which might possibly be raised in view of the actual decision in a case which has already been referred to on the question of the interpretation of Section 31: Nirmal Nalini v. Harsamukhi Dasi : AIR1939Cal233 It was held in that case that where a bid for one separate account is not sufficient, the Collector may at once make a declaration under Section 14 for the sale of the entire estate without previously putting up the other separate accounts which are also in arrears and have been advertised for sale. It may be suggested that if this view is correct, it practically renders separate sales of separate shares infructuous, besides involving a differential treatment of one separate account as against another which is equally in default. A joint sale may thus appear to be called for as the only fair and possible remedy to avoid such an anomalous result. The answer is, in the first place, that the decision itself postulates a separate sale. Secondly, it does not hold that in every case where the first sale of a separate account fails to realise the full amount of arrear due thereupon, the Collector shall be bound to drop the sale of the other defaulting shares, and further, no anomaly is really involved. The case was decided on the basis that after the first sale, the Collector found it useless to proceed with the other sales which had been notified. The position in fact was that even if the other sales were held and the proceeds were sufficient in each case to cover the amount due upon the share sold, the estate as a whole would still have been left in arrear, and a declaration under Section 14 would have been inevitable in any circumstances. It was not possible therefore to save any of these defaulting separate accounts: the deficiency in one case was sufficient to destroy the Chance of escape of every one of the other shares which were in arrears. If, then, in this state of things, it was held that after the sale of one separate account the Collector was justified in making an order under Section 18 (as he must have done to regularise the procedure) exempting the other separate accounts from sale, though advertised, this in our opinion could not be taken to be a pronouncement of the Court against the rule or practice of separate sales of separate accounts. The Court was not called upon to consider a case where the arrears due upon one or more of the separate shares advertised for sale, if realised, would have been sufficient to wipe off the demand against the estate as a whole.

12. In a case where there is such a possibility the Collector, in our opinion, shall be bound to proceed with the sales of the separate accounts seriatim, stopping only when he finds that by appropriating the purchase money of each share sold to the liquidation of its own arrears, the estate as a whole is freed from its liability for arrears of revenue in the general account. Under the provisions of Section 13, as already explained, the Collector will indeed have no option but to stop when such a stage is reached. There is nothing in the decision in Nirmal Nalini v. Harsamukhi Dasi : AIR1939Cal233 which militates against this view, and that case cannot therefore be held to have decided against separate sales in any view of the matter. There is no anomaly either involved in the decision which requires to be corrected by a joint sale. A joint sale would, on the other hand, create more anomalies than it would answer. In our judgment, upon a careful consideration of all the relevant provisions of the Act, it must therefore be held that a joint sale of two or more separate accounts is contrary to law, and cannot be supported. On this ground, if not on the other ground regarding the validity or otherwise of the notice under Section 6, the sale in the present case must consequently be declared void and set aside. The result is that the appeal will stand dismissed and the suit decreed with costs in both the Courts below. We make no order for costs in this Court. We direct that a copy of this judgment be forwarded to the Board of Revenue.

Edgley, J.

13. I agree.


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