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Nirmal Nalini Dasi Vs. Harsha Mukhi Dasi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal233
AppellantNirmal Nalini Dasi
RespondentHarsha Mukhi Dasi
Excerpt:
- .....court of the subordinate judge of alipore. it arises out of a suit for annulment of the sale of an entire estate for arrears of revenue held under the bengal land revenue sales act, 1859. there was an alternative prayer in the plaint for reconveyance of plaintiffs' share in the estate sold and for recovery of possession thereof. the plaintiff is the owner of seven annas six gandas two karas and two krantis share of touzi no. 1088 of 24-paraganas collectorate. defendants 2 to 20 were the owners of the remaining share. eight separate accounts in respect of this estate, namely no. 1088/1 to 1088/8 were opened under section 10, bengal land revenue sales act, 1859. the plaintiffs were the owners of a half-share in the separate account no. 1088/1 and the whole of the residuary share. he let.....
Judgment:

Nasim Ali, J.

1. This is an appeal by the plaintiffs against the judgment and decree of the First Court of the Subordinate Judge of Alipore. It arises out of a suit for annulment of the sale of an entire estate for arrears of revenue held under the Bengal Land Revenue Sales Act, 1859. There was an alternative prayer in the plaint for reconveyance of plaintiffs' share in the estate sold and for recovery of possession thereof. The plaintiff is the owner of seven annas six gandas two karas and two krantis share of Touzi No. 1088 of 24-Paraganas Collectorate. Defendants 2 to 20 were the owners of the remaining share. Eight separate accounts in respect of this estate, namely No. 1088/1 to 1088/8 were opened under Section 10, Bengal Land Revenue Sales Act, 1859. The plaintiffs were the owners of a half-share in the separate account No. 1088/1 and the whole of the residuary share. He let out his entire interest in the estate in patni and the patnidars under the terms of the patni lease had to pay revenue to Government due from their shares in the estate. The other half-share in separate account No. 1088/1 belonged to defendant 2. The separate account No. 1088/5 belonged to defendant 3, the husband of defendant 2, and his brothers, defendants 4 and 5. A sum of Rupees 56-9-4, being a moiety of revenue for the third kist of 1931-32 in respect of the share 1088/1, fell into arrear. There was also a default in payment of the entire revenue for this kist due from 1088/5, namely Rs. 31-4-11. On 23rd March 1932 the Collector put up to sale No. 1088/1 under Section 13, Bengal Land Revenue Sales Act. No bidder was present on the date of the sale. The Collector thereupon declared under Section 14 that the entire estate would be put up to sale on a future date, unless the other recorded sharer or sharers, or one or more of them, would, within ten days, purchase the share in arrear by paying to Government the whole arrear due from such share.

2. On 29th March 1932 a part of the demand for the fourth kist from No. 1088/1 was paid. On 8th April 1932 the arrears of the third kist, viz. Rs. 56-9-4 due from No. 1088/1 and Rs. 31-4-11 due from No. 1088/5 were deposited in the Collectorate. On 5th May 1932 the Collector ordered the sale of the entire estate under Section 14 as none of the sharers purchased No. 1088/1 by paying the arrear as declared by him on 23rd March 1932, and asked the touzinabis to supply the arrears of the entire estate. On 11th May 1932 he received the particulars and fixed 20th June 1932 for the sale of the entire estate. Notice under Section 7, showing Rs. 187-15-44 as arrears of the entire touzi, was issued and served on 12th May 1932. On 20th June 1932 defendant 1 purchased the entire estate for Rs. 1600. Appeal to the Commissioner was dismissed on 7th December 1932. On 23rd December 1932 the sale was declared final and conclusive and an order was made granting sale certificate to defendant 1. All the separate accounts. were closed on 4th January 1933. The present suit was instituted on 4th December 1933. The objections of the plaintiffs to the sale, so far as they are relevant for the purposes of the present appeal, are:

(1) That there was no sale according to the provisions of Section 13 of the Act which must precede the declaration for sale of the entire touzi under Section 14, inasmuch as : (a) No. 1088/5 which was also in arrears at the time, was not put up to sale under Section 13(b) No. 1088/1 was put up to sale on 23rd March 1932, although the latest date of payment of the arrears of the third kist of 1931-32 was 28th March 1932; (2) that the Collector having accepted payment of the arrears due from the two separate accounts in default on 8th April 1932, that is after having ordered the sale of the entire touzi under Section 14, was legally incompetent to sell the entire touzi on 20th June 1932; (3) that by reason of these illegalities or irregularities there was paucity of bidders with the result that the estate was sold for Rs. 1600 only although its market value was Rs. 20,000.

3. Defendant 1 contested each one of these grounds. The learned Subordinate Judge overruled plaintiffs' objections to the sale and dismissed the suit. Hence this appeal by them. The first contention of Mr. Bose on behalf of the appellants is that the sale of the entire touzi is void, inasmuch as the sale was contrary to the provisions of Section 3, Bengal Land Revenue Sales Act. The argument of Mr. Bose is this : although Section 3 of the Act gives power to the Collector to sell under the Act a clog upon that power comes into operation when separate accounts are opened under Sections 10 and 11 of the Act, and the provisions of Section 13 not having been complied with in the present case, the clog was not removed, and consequently the sale was void. Section 3 gives jurisdiction to the Collector to sell revenue paying estates for arrears of revenue. Sections 6 and 7 lay down how the notifications for sale are to be issued and notice is to be given to the raiyats of the estates. Sections 10 and 11 deal with the opening of separate accounts, and Sections 13 and 14 lay down the procedure for sale for arrears of revenue when separate account or accounts are opened under Sections 10 and 11. Section 13 is in these terms:

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 S.C. 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 several separate portions, of jama assigned thereto.

4. Section 14 is in these terms:

If in any case of a sale held according to the provisions of the last preceding Section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the Collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date, unless the other recorded sharer or sharers, or one or more of them, shall within ten days purchase the share in arrear by paying to Government the whole arrear due from such share.

If such purchase be completed the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided for in Sections 28 and 29 of this Act to the purchaser or purchasers, who shall have the same rights as if the share had been purchased by him or them at the sale.

If no such purchase be made within ten days as aforesaid the entire estate shall be sold, after notification for such period and publication in such manner as is prescribed in Section 6 of this Act.

5. The contention of Mr. Bose is that when two or more separate accounts are in arrear the Collector is bound under Section 13 to put up in the first place all the defaulting accounts to sale, before he can declare that the entire estate would be put up to sale for arrears of revenue. If two or more accounts are in arrear and if one of them is put to sale first, and the sale proceeds are sufficient to satisfy the arrears due on that account, Section 14 does not come into operation. The Collector then has got to proceed to sell the other account or accounts in default, and if by the sale of such other account or accounts the arrears due from these accounts are satisfied, Section 14 does not also come into operation. If however the highest offer for the share first exposed to sale does not satisfy the arrears due from that share Section 14 comes into operation at once.

6. It was contended by Mr. Bose that this interpretation of Section 13 would deprive the proprietors of the protection given to them by the opening of separate accounts under the Act. According to Mr. Bose the protection is this : If the sale proceeds of the share first exposed to sale, fail to satisfy the arrears due from that share, and if other share or shares which are also in default are sold thereafter the subsequent sale may bring in sufficient money to wipe off the arrears due from all the separate accounts which are in arrear, and the sale of the estate may thereby be averted. This argument assumes that the proceeds of sale, held under Section 13 of the Act, of one separate account can be appropriated towards the arrears due from other separate account or accounts. Section 31 of the Act however lays down that the Collector is to apply the purchase money to the liquidation of all arrears due upon the latest date of payment from the estate of share of an estate sold. Mr. Bose's contention is that the purchase money of a share of an estate can be utilized for liquidation of all arrears due from the entire estate, because the word 'respectively' is not to be found after the words 'the estate or share of an estate sold' in Section 31.

7. I am however unable to agree with Mr. Bose. Evidently, this is the only Section in the Act which deals with application of the purchase money obtained by sales held under the Act. It therefore provides for the application of the purchase money not only of the entire estate but also of a share or shares of an estate. My reading of Section 31 is that the purchase money of an entire estate is to be applied to liquidate the arrears due upon the entire estate, and the purchase money of a share of an estate is to be appropriated towards the satisfaction of the arrears due from that share. The interpretation which I have put upon Section 13 does not therefore deprive the holders of separate accounts of any protection given to them by the Act. This interpretation of Section 13 is also supported by the use of the words the share exposed to sale' in Section 14. Mr. Bose however contended that these words simply indicated the position as each share would be exposed to sale under Section 13 and, consequently, they would include all shares which would be put up to sale one after another under Section 13. If that was the intention of the Legislature, the words share or shares' used in Section 13 would have been repeated in Section 14. I am therefore of opinion that under Section 13 the Collector is bound to put up to sale the other separate accounts in arrears, only when the share first exposed to sale fetches sufficient money to liquidate the arrears due on such share. Where however the share first exposed to sale does not satisfy the arrears due from that share, it would be useless for the Collector to put up the other shares to sale, as the sale proceeds of such other shares would not wipe off the arrears, or any balance of arrears, due from the share first exposed to sale.

8. The next contention of Mr. Bose is that the sale of the share No. 1088/1 under Section 13 was premature, as it was held on 23rd March 1932 for an arrear of revenue, the latest date for payment of which, according to the appellants, was 28th March 1932. The arrear of revenue for which No. 1088/1 was put up to sale under Section 13 of the Act was on account of the third kist of 1931-32 and according to the respondent the latest day for payment of arrear for such kist was 12th January 1932. It was argued by Mr. Bose that 12th January 1932 was the date of payment of this kist according to the settlement and kistibandi of the mehal referred to in Section 2 of the Act. The only evidence on which Mr. Bose relied in support of his contention is the entry in touzi ledger of No. 1088/1 for the year 1931-32. In this ledger 12th January 1932 has been stated to be the date of payment of the third kist for that year. In the same ledger 28th March 1933 has been stated to be the date of payment of the fourth kist. In Ex. G(2), the notice under Section 7 of the Act, this date has been stated to be the last date for payment of revenue. Again the dates mentioned against the four kists in this ledger exactly tally with the dates determined by the Board of Revenue under Section 3 as the latest dates for payment of arrears of revenue of this estate. There cannot be any doubt therefore that the: dates for payment of kists mentioned in the ledger are the latest dates of payment determined under Section 3. It may be noted in this connexion that in the touzi ledger of 1932.1933 (Ex. 10) the word 'date' has been replaced by the words 'latest date of payment.' The share No. 1088/1 was therefore not put up to sale under Section 13 before the latest date of payment. The last contention of Mr. Bose is that the payment made by the defaulting proprietors on 8th April 1932 having been appropriated by the Collector towards the arrears of the estate, and by those payments the arrear of revenue for which No. 1088/1 was put up to sale under Section 13 having been wiped off the subsequent sale of the entire estate under Section 14 was bad. I am unable to accept this contention. The last paragraph of Section 6 lays down:

No payment or tender of payment, made after sunset of the said latest day of payment, shall bar or interfere with the sale, either at the time of sale or after its conclusion.

9. Mr. Bose contended that this latest day of payment was the latest day of payment, mentioned in Para. 1 of Section 6 and consequently the last paragraph of Section 6 applies-only to an estate in which no separate accounts have been opened. Section 13 lays down that where separate account or accounts are to be sold, notice as prescribed under Section 6 of the Act is to be given. Mr. Bose's contention is that this has reference only to the form and service of the notice and that it has no connexion with the question of the payment or tender of payment mentioned in the last paragraph of Section 6. The jurisdiction to sell a separate account in accordance with the provisions of Section 13 is derived from Section 3 of the Act. Consequently the provisions of the last paragraph of Section 6 are attracted to sales not only of entire estates but also of shares of an estate. The payment by the defaulting proprietors after the latest day of payment of the third kist could not therefore in any way interfere with the sale held under Section 14. In this view of the matter, the question of injury to the plaintiffs does not at all arise. The appeal is accordingly dismissed. There will be no order for costs in this appeal.

Henderson, J.

10. I agree. In my opinion the only point of any substance urged in support of this appeal is the alleged failure of the Collector to comply with the provisions of Section 13, Bengal Land Revenue Sales Act. It seems plain that the intention of the Legislature in providing for the opening of separate accounts was to afford some measure of protection to the proprietors paying their share of the revenue against defaulters. At any rate, such protection is provided by Section 13 of the Act which requires that the shares in default are to be put up for sale first. In the present case two shares were in default : separate account No. 1088/1 and separate account No. 1088/5. The Collector put up separate account No. 1088/1 for sale, 'failed to obtain any bid and then proceeded to sell the entire estate under Section 14 of the Act. Mr. Bose's contention is that before proceeding under Section 14, the Collector ought also to have put up the separate account No. 1088/5 for sale. It was argued that if this had been done, a bid sufficient to cover the entire arrears might have been obtained and the sale of the entire estate thereby rendered unnecessary. I may add that if I thought that this contention was sound, I should have no difficulty in reaching the further conclusion that the irregularity caused substantial injury to the plaintiffs.

11. The question really depends upon the interpretation of Section 31. Unless it was open to the Collector to apply any surplus sale proceeds of the sale of separate account No. 1088/5 to discharge the arrears of separate account No. 1088/1, Mr. Bose's argument must fail. In my opinion, the terms of the Section are entirely opposed to any such interpretation. After the arrears due upon the separate account are discharged, any surplus money may be applied to the liquidation of any outstanding liability on that share. But apart from that, it must be kept in deposit on account of the proprietors of that share. If Mr. Bose's contention were correct, I cannot see any necessity for referring specially to the share of the estate. On what I conceive to be the correct interpretation, whatever price separate account No. 1088/5 might have fetched, the arrears of separate account No. 1088/1 would still remain unsatisfied. The result of this is that as soon as any particular separate account fails to realise a sum sufficient to discharge the arrears due upon it, then Section 14 automatically comes into play. No doubt, if in the present case, there had been a sufficient bid for separate account No. 1088/1, the Collector then would have been bound to put up separate account No. 1088/5 for sale before proceeding to sell the entire estate, but the converse proposition does not hold good. As there was no irregularity in connexion with the sale, the plaintiffs' suit must fail.


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