1. This is an appeal under Section 15, Letters Patent, against the decision of my learned brother, Patterson, J., who reversed the decision of the Courts below and has dismissed the suit of the plaintiff. The plaintiff instituted the suit in which this appeal arises for a declaration of his alleged taluki title to an undivided 2/3rd share of the lands described in the schedule to the plaint and for recovery of possession of the same jointly with defendant 8. There was a further prayer in the plaint that the sale of the land held under the patni regulation on 18th November 1918 was void and did not affect the interest of the plaintiff in any way. Amongst the several defendants to the suit defendant 7 alone contested the suit. It is to be noticed that although the sale under the regulation took place on 18th November 1918, the present suit was not instituted till nearly ten years after, on 7th February 1928. The facts on which this suit is based, lie within a narrow compass. It appears that by reason of the arrears in payment of rent, the patni taluk in question was sold at a mid year sale on 18th November 1918. Notices according to the terms of the regulation were duly served on 29th October 1918. The patnidar died on 10th November 1918, and the sale which is now impugned took place on 18th November 1918. The ground of the suit is that as the heirs of the deceased patnidar were not brought on the record and as the Collector, held the sale in pursuance of the regulation, the proceedings before the Collector which culminated in the sale, are void and without jurisdiction. It is contended that on general principles, any proceeding taken against a dead person is of no effect against those that succeed to his estate. This ground did prevail with the Courts below which decreed the suit. On appeal to this Court, Patterson, J., came to the conclusion that the regulation nowhere provides that it is incumbent on the zamindar to ascertain who are the actual holders of any particular patni taluk or to enter the names of the actual holders in his books, and that all that it does in this respect is to require the zamindar, on the fulfillment of certain conditions, to register and otherwise give effect to alienation of patni taluks on an application being made to him to that end. After considering the relevant provisions of the regulation, the learned Judge has come to the conclusion that as all conditions precedent to the sale are fulfilled prior to the death of the defaulter and the zamindar is under no obligation to trace out and substitute the heirs of the defaulter, the sale was a good one and must be allowed to stand. He has accordingly dismissed the plaintiff's suit. The present appeal as has been already stated, is against this decision.
2. We are of opinion that the conclusion arrived at by Patterson, J., is right. The provisions of the patni regulation which relate to the service of notices with regard to sales held under the regulation are contained in Section 8 of the Regulation. Section 8 says that on the first day of Kartic in the middle of the year, the zamindar shall be at liberty to present a petition to a civil Court of the district and a similar one to the Collector, containing a specification of any balances that may be due to him on account of the expired year from all or any talukdars or other holders of an interest of the nature described in Clause 1, Section 8. The said petition containing this specification shall then be stuck up in some conspicuous part of the cutchery with a notice that if the amount claimed be not paid before the first Agrahayan, the tenures of the defaulters will on that day be sold by public sale in liquidation. In the case of a mid-year sale it is further stated that either the entire amount due shall be paid or so much of it as shall reduce the arrear including any intermediate demand for the month of Kartic, to less than one-fourth of the total demand of the zamindar, according to the kistibandi, calculated from the commencement of the year to the last day of Kartic. Then it is stated that a notice shall be sent by the zamindar to be similarly published at the cutchery or at the principal town or village upon the land of the defaulter. The zamindar shall be exclusively answerable for the observance of the forms above prescribed and the notice required to be sent into the mofussil shall be served by a single peon who shall bring back the receipt of the defaulter or of his manager, for the same or in the event of inability to procure this the signatures of three substantial persons residing in the neighbourhood, in attestation of the notices having been brought and published on the spot. Now it appears clear from these provisions with regard to the publication of notices that the proceedings taken under the patni regulation for realization of arrears of patni rent are not taken against the defaulter personally at all but are taken against the tenures.
3. In these circumstances there would be no doubts in this case that the necessary notice as required by the regulation having been duly published, it seems difficult to hold that the sale is invalid merely because at the time when the sale was held the defaulter was dead. There is no procedure in the patni regulation which enables the Collector to bring on the record the heirs of the defaulting patnidar, if he has died in the meantime, nor is there any provision in the statute which makes it incumbent on the zamindar to seek out such heirs and to apply to the Collector that the sale should be held after bringing the heirs of the deceased patnidar on the record. In the absence of any such provision and having regard to the scheme and policy underlying the very stringent provisions of the patni sale law which is really enacted for the purpose of making it possible for the zamindars to pay the Government revenue in time, we do not think that it can be held that the sale held under the circumstances as in the present case was a void or invalid sale. We are therefore of opinion that Patterson, J., came to the right conclusion. Our attention has been drawn by the learned advocate for the respondent to the case of Raj Narain Hitter v. Ananta Lal Mandal (1892) 19 Cal 703 where one of the learned Judges, Tottenham, J., held that even if the patnidar had died before all the proceedings under the regulation were taken the sale would not by reason of that circumstance be invalid. The learned Judge observed at p. 717 of the report thus:
Issues 5 and 6 relate to the fact that two of the recorded patnidars wore dead before these proceedings under the regulation were taken. We think that the fact is immaterial, and that the Court below was wrong in holding that the proceedings were illegal by reason of their having been directed against dead persons; for proceedings under the patni regulation taken for the realization of the patni rent are not taken against persons at all, but against the tenure. And the zamindar is quite right in selling out in his petition and notices the name of the patni and the names of the patnidars as recorded in his books. The findings therefore of the lower Court upon these issues cannot avail the plaintiffs.
4. This was the opinion of Tottenham, J. who was one of the Judges who were dealing with the matter. CM. Ghosh, J., did not express any such opinion. It is not necessary for the purposes of this appeal to express any opinion as to how far this decision is correct, in view of the provisions contained in Section 8 of the Regulation. Section 8 in para. 2 states:
The zamindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mufassil shall be served by a single peon who shall bring back the receipt of the defaulter, or of his manager, for the same.
5. This evidently implies, or at any rate refers to, the case of a defaulter who is alive and not the case of a defaulter who is dead. Be that as it may, without expressing our final opinion, but as at present inclined, we say that we have some doubts as to the soundness of the decision of Tottenham, J., in the case referred to above. The result is that this appeal fails and it is dismissed with costs.
Nasim Ali, J.
6. I agree.