In No. 1419.
1. The question for decision in this appeal is, what is the extent of share which passed to the plaintiff, at a sale held under Section 13 of Act XI of 1859.
2. It appears that a 14 annas 9 pies share of an estate belonged to one Mofizar Rahaman.
3. Mofizar Rahaman died leaving two sons, Fazor Rahaman and Dula Meah, a widow and three daughters, Under the Muhammadan Law the two sons got one half (a quarter each) and the widow and the daughters the other half of the estate. On the 29th October 1886 Fazor Rahaman got himself and his brother Dula Meah, who was then a minor, registered in the Collectorate with respect to the whole of the 14 anna 9 pies share, ignoring his mother and sisters who may be conveniently referred to as the females.
4. These females, however, on the 21st March 1898 obtained an order for registration of their names in respect of one-half of 14 annas 9 pies share, that being their shares in, the estate left by Mofizar Rahaman.
5. On the 7th June 1893, the plaintiff purchased the interest of Fazor Rahaman at a sale held, in execution of a money decree and got himself registered with respect to 7 annas 4 1/2 pies share, although that share included the share of Dula Meah. On the 25th March 1897, the share of Dula Meah was purchased by one Wasek Ali, and he also got his name registered with respect to 7 annas 4 1/2 pies share, although Dula Meah's share was only one half of that.
6. Now after the females got their names registered with respect to 7 annas 4 1/2 pies share, Wasek Ali, as purchaser of Dula Meah's interest, ought to have bsen recorded as owner of one-half of 7 annas 4 1/2 pies share. In the general register, however, the females were recorded as owners of 7 annas 4 1/2 pies share and Wasek Ali and the plaintiffs were recorded as owner of 7 annas 41/2 pies each. The total, therefore, (treating the 14 annas 9 pies as 16 annns) ammounted to 24 annas.
7. It appears that sometime before 1895, the plaintiff got a separate account opened in respect of 7 annas 41/2 pigs sharg with a proportionate Government revenue and it was called hissya No. 2.
8. The shares of the females together with that of Wasek Ali (purchaser of Dula Meah's interest) were formed into a separate account consisting of 7 annas 4 1/2 pies share with a proportionate Goverment revenue, and was known as hissya No. 5.
9. Both the hissyas Nos. 2 and 5 were sold for arrears of revenue under Section 13 of Act XI of 1859, on the 4th March 1898, and Mssya No. 2 (which formerly belonged to him) was purchased by the plaintiff, and Mssya No. 5 was purchased by the defendant.
10. It appears from the judgment of the Court below, that a person claiming the interest of the females in the estate has lost his suit as against the plaintiff and the defendant, by reason of these sales for arrears of revenue. We are not, therefore, concerned with the shares of the females, and the only question now is whether the plaintiff by his purchase of hissya No. 2 acquired only one-half of 7 annas 4 1/2 pies share (that being the share which originally belonged to Fazor Rahaman and subsequently to the plaintiff under his purchase in execution of the money decree) or the entire 7 annas 41/2 pies share covered by separate account No. 2.
11. The question turns upon the construction of Section 54 of Act XI of 1859, which runs as followes : 'When a share or shares of an estate may be sold under the provisions of Section 13 or Section 14, the purchaser shall acquire the share or shares subject to all incumbrances and shall not acquire any rights which were not possessed by the previous owner or owners.'
12. It is contended on behaf of the appellant that the words shall not acquire any rights which were not possessed by the previous owner or owners' mean that the purchaser shall not acquire any rights which were not possessed by the previous owner at any time previously, and that as Fazor Rahaman or the plaintiff never possessed more than a moiety of 7 annas 4 1/2 pies share, the plaintiff as purchaser at the revenue sale could riot acquire a title to more than that share. On the other hand, it is contended on behalf of the respondents, that the purchaser acquires the share itself which is put up for sale, irrespective of the extent of the share of the person whose name was recorded in the separate account.
13. The rights of the purchaser, under Section 54 , Act XI of 1859, have been considered in several cases by this Court. In Dabi Das Choudhuri v. bifro Charan Ghosal 22 C. 641 where an estate held by a Hindu widow was said for arrears of revenue, and it was contended that under Section 54 the purchaser did not purchase any estate which lasted longer than her life-time, Pigot, J., after referring to the provisions of Section 13 observed: It is plain that as the result of a sale under Section 13, it is contemplated that the whole share in respect of which the arrear may have been due shall pass to the purchaser; and that confirms the impression which, upon reading Section 54 alone, one would be disposed to form with regard to its meaning that the words 'shall not acquire any rights' in that section refer to the acquistion of rights in respect of interest, such as incumbrances or the like, which are referred to in the previous phrase of that section. We are, therefore, of opinion that the entire estate passed upon the sale for arrears of revenue under Section 54, and that the purchaser did not take any interest limited to the life of Satanmani.' No doubt a Hindu widow in possession of a share of an estate as the heiress of her husband or her father represents the full owner's, interest and the purchaser of such a share acquires the share itself, and not merely a life-estate, and this is the ground upon which Brett and Sharf-ud-din, JJ., based their decision in Banalata Dasi v. Monmotha Nath Goswami 11 C.W.N. 821. Pigot and Stevens, JJ., however, in the case cited above based their judgment upon a construction of the section and held that the words shall not acquire any rights' which were not possessed by the previous owner or owners' refer to the acquisition of rights in respect of interest, such as incumbrances or the like, which are referred to in the previous phrase.
14. It has also been held that; adverse possession against the defaulter, whether, for the statutory period or for a lesser period does not bind the purchaser of a share, and that the purchaser is not a person claiming from or through the defaulter. See Kumar Kalanand v. Syed Sarafat Hossein 12 C.W.N. 525; Rahimiiddi Munshi v. Nalini Kanta Lahiri 1 Ind. Cas. 81 : 13 C.W.N. 407 and Bilas Chandra Mukherjee v. Akshay Kumar Das Sarkar 14 Ind. Cas. 219 : 16 C.W.N. 587 : 15 C.L.J. 436. See also Bhawani Koer v. Mathura Prasad 7 C.L.J. 1.
15. The authorities clearly show that at a sale under Section 13 of Act XI of 1859 it is not the rights of the recorded proprietor that pass, but the share itself.
16. Reliance was placed on behalf of the appellant on the case of Annada Prosad Ghose v. Rajendra Kumar Ghose 29 C. 223 : 6 C.W.N. 375. In that case, the plaintiff, who purchased in execution of a money decree the rights of the defaulter in whose name a separate account had been opened in respect of a share of an estate, sued for declaration of his title to, and recovery of possession of, the share against the purchaser there at a revenue sale, and it was contended on his behalf that the words the purchaser shall not acquire any rights which were not possessed by the previous owner or owners' mean that the purchaser at a revenue sale only acquires the rights possessed by the previous owner or owners at the date of the sale. Such a contention, if upheld would lead to the result that if the previous owner parts with all his rights before the share is put up for sale for arrears of revenue, the purchaser at such a sale acquires nothing, and the learned Judges (Rampini and Pratt, J.J.) overruled the contention. In doing so, however, they held that the words quoted above meant that 'the purchaser shall not acquire any rights not possessed by the previous owner or owners at some time or another.' It is upon this passage of the judgment that the appellant relies, and it is contended that as the previous owner of hissya No. 2 never had rights to anything more than one half of 7 annas 4 1/2 pies share, the plaintiff could not, by his purchase of hissya No. 2, acquire a title to the entire 7 annas 4 1/2 pies share. No doubt there is the passage in the judgment, but then the learned Judges also said with reference to the interpretation sought to be placed upon the section, 'To put such an interpretation upon these words would be to entirely ignore the policy of the revenue law, which is to protect the revenue and make the share, on which the revenue is assessed, available for the arrears of revenue due upon it,' and they quoted with approval the observation of Phear, J., in the case of Ganga Deen Misser v. Kheroo Mandal 14 B.L.R. 170 : 22 W.R. 449 The sale of the Collector passes to the purchaser the share of the defaulting shareholder of the entire estate as it was registered in the Collector's books,' and, 'it was not the intention, we think, of the Legislature to introduce uncertainty of this kind into auction-sales held for the purpose of realizing revenue. On the contrary, it is rather the general principle of the Legislature to make these sales effective to pass the full share of the defaulting shareholder free, so to speak, of all incumbrances.
17. In none of the cases which we have referred to, was there any question of the extent of the share which belonged to the person in whose name the separate account of the share of the estate was opened, bui these authorities establish the proposition that it is not the right, title and interest of the pluvious owner of the share which pass to the purchaser under Section 54, but the share as recorded in the Collector's book, on which the revenue is assessed. It is true Phear, J., refers to the 'full share of the defaulting shareholder.' In the present case although Fazor Rahaman and subsequently the plaintiff as purchaser of his interest had only a moiety of 7 annas 41/2 pies, the separate account was opened with respect to the whole 7 annas 41/2 pies share in the name of thg plaintiff with a proportionate Government revenue. The other moiety belonged to Dula Meah, and the name of Wasek Ali, the purchaser of his interest, ought to have been recorded in that separate account, but was entered in the separate account No. 5 along with the names of the females. But the 7 annas 41/2 pies share was formed into the separate account No. 2 with a proportionate Government revenue, and not with a moiety of the revenue payable for that share. And if the policy of the revenue law is to protect the revenue and make the share on which the revenue is assessed available for the arrears of revenue assessed upon it, as we think it is, the whole of the 7 annas 41/2 pies share when it fell into arrears, became liable to be sold for such, arrears, although the person recorded as the owner of that share had right to only a moiety of it.
18. We agree with the view taken by Pigot, J., in Dabi Das chowdhuri v. Bipro Charan Ghosal 22 C. 641 followed by Mookerjee, J., in Bhawani Koer v. Mathura Prasad 7 C.L.J. 1. viz. that the words 'shall not acquire any rights' in Section 54 refer to the acquisition of rights in respect of interest, such as incumbrances or the like, which are referred to in the previous phrase of that section. It is to be observed that a separate account is opened under Act XI of 1859, after service of notice to the other share-holders. It is pointed out however on behalf of the appellant that Section 69 of the Land Registration Act provides that no separate account shall be opened under the provisions of Section 10 or 11 of Act XI of 1859 in respect of the share of any applicant under the said section otherwise than for a share corresponding with the character and extent of interest in the estate, in respect of which such applicant is recorded as proprietor or manager under the Land Registration Act, and that, therefore, hissyas No. 2 ought not to have been opened with respect to 7 annas 41/2 pies share in the name of the plaintiff when he applied for opening of a separate account of his share. But as already stated, in the general register the plaintiff was registered with respect to 7 annas 41/2 pies; Wasek Ali and the females also were recorded each with respect to a similar share, the total shares thus amounting to more than 16 annas. That no doubt was a mistake, but the separate accounts were opened several years before the hissyas were put up to sale, one in the name of the plaintiff for a 7 annas 41/2 pies share, and the other in the name of Wasek Ali and the females for a 7 annas 41/2 pies with proportionate Government revenues. Neither Wasek Ali nor the females appear to have ever taken any steps to have the mistake corrected. The hissya No, 2 consisting of the whole of 7 annas 41/2 pies stood in the name of the plaintiff, though erroneously, and when the Government revenue for that share fell into arrears, the Collector put up that hissya for sale, and if we are to hold that the entire hissya N : 2 did not pass to the purchaser because the person in whose name it stood recorded did not possess the entire 7 annas 41/2 pies share, we would be introducing uncertainty into auction sales for the purposes of realizing revenue which, as pointed out by Phear, J., was not the intention of the Legislature.
19. Lastly, it was contended on behalf of the appellant, that the Court of first instance having found that sale of liissya No. 2 was brought about by the plaintiff fraudulently, the Court of Appeal below ought to have come to a finding upon the point, and it is wrong in holding that no question of fraud : or mistake comes in. But thfe only ground upon which the Court of first instance found that the revenue sale was brought about by the fraud of the plaintiff, is that he took no steps to have the mistake in the matter of separate account having been opened in respect of a 7 annas 41/2 pies share rectified. But the separate accounts were opened several years before the sale for arrears of revenue, and we cannot say that there was any obligation on the part of the plaintiff to have the mistake corrected for the benefit of Wasek Ali or persons representing him.
20. We are not concerned with a consideration of the rights of the females. As already stated, the purchaser of their rights has been held in a previous suit to have lost his rights by reason of the revenue sales, and both the plaintiff and the defendant wore parties to that suit.
21. We are of opinion that the entire 7-annas 4 1/2 pies share constituting hissya No. 2 passed to the plaintiff at the sale for arrears of revenue, and this appeal will accordingly be dismissed with costs.
22. In Nos. 2627 to 2629.
23. These appeals arise out of suits for rent in respect of 7-annas 41/2 pies share instituted by the plaintiff as purchaser of hissya No. 2. Having regard to our decision in Appeal No. 1419 of 1912, we think these appeals must also be dismissed with costs.