1. This appeal arises out of a suit for the annulment of a sale for arrears of revenue which took place on the 19th of September 1904. The main grounds upon which the plaintiffs come to Court, are two. First, that the Collector had no jurisdiction to hold the sale as no arrears** were legally due and second, that the Sale was brought about by the fraud of defendant No. 3, who was the accredited agent of some of the plaintiffs for the payment of revenue and being as such bound to give information of the estate having fallen into arrears, did not do so, but on the contrary, colluded with defendants Nos. 1 and 2 whose servant also he was and purchased the estate for himself, his relation defendant No. 4 and defendants Nos. 1 and 2, entitling the plaintiffs to a reconveyance of their shares on payment of the proportionate value.
2. The learned Subordinate Judge has decided the suit against the plaintiffs on both these points and they have appealed mainly on the grounds indicated above.
3. The main facts of the case are that the estate called Mahal Fakruddinpur bearing touzi number 1146 of the Saran Collectorate and consisting of the two Mouzas Pakri Fatehulla and Fakruddinpur bore a Government revenue of Rs. 186-14-21/4. The mouzawar register kept by the Collector under Section 4 of the Land Registration Act, Exhibit 19, page 117, shows that the revenue assessed upon Mouzah Pakri Fatehulla was Rs. 79-2-51/2 and that upon Fakruddinpur Rs. 107-11-83/4 . The learned Subordinate Judge says: 'This so called mahalwar register which bears the signature of the Superintendent of Survey, is not binding on the Collector, as the jama sadar of 2 villages cannot be apportioned except under the Butwara Law.' This seems to be a misconception of the Subordinate Judge, The keeping of these mauzawar registers, called mahalwar registers in Behar is enjoined by Section 4 of the Land Registration Act, VII of 1876, B. C. and even before that enactment There were the quinquennial registers under Regulation, XLVIII of 1793 and estate registers under Regulation VIII of 1800. The attested copy filed, was taken from the Collectorate and the mere fact that it bears the signature of the Superintendent of Survey on a corner, does not make it a document kept by that officer. This document does not show any apportionment of revenue within a mouzah but states the revenue assessed on each mouzah, so that the reference to the Butwara Law is quite irrelevant. Now several separate accounts were opened in respect of this estate, four in respect of Mouzah Pakri Fatehulla comprising the whole 16 annas and 2 in respect of Fakruddinpur comprising 6 annas, leaving 10 annas as the ijmali or residuary share bearing the original touzi number 1146: the separate account shares being numbered as 1146/1, 1146/2, 1146/3, 1146/4, 1146/5, 1146/6, the first four relating to Pakri Fatehulla and the rest to Fakruddinpur. The first separate account 1146/1 was in respect of 9 annas 4 pies of Pakri for a revenue of Rs. 46-3-1, which is exactly proportionate to the basis of the revenue for the 16 annas being Rs. 79-14-51/2. The second separate account 1146/2 was opened in 1872 in respect of a 2-annas share of Pakri Fatehulla and the revenue fixed was Rs. 10-11-6. The third account 1143/3 was opened in 1882 for 4 annas 8 pies for a revenue of Rs. 22-4-3, the 16 annas, making a total of Rs. 79-2-10, a little more than the actual amount of Rs. 79-2-51/2, small fractions being taken as units for the convenience of realization and payment. In 1884, account No. 4 bearing T U 1146/4 was opened out of account No. 2 for 6 pies 13 krants and odd and the revenue assessed was Rs. 2-11-11. Account No. 5 was opened in 1892 for 2 annas of Fakruddinpur with a revenue of Rs. 13-7-6 and another of 4 annas of Fakruddinpur with a revenue of Rs. 26-15-0, both amounts being in exact proportion to a revenue of Rs. 107-11 -83/4 for 16 annas. Thus 10 annas of Fakruddinpur was left as the residuary share and its revenue should be Rs. 107-ll-83/4 minus Rs. 40-6-6, the total of the jamas for Nos. 5 and 6, that is, Rs. 67-5-23/4 .It would appear that when account No. 4 was opened out of account No. 2, the original revenue for the original No. 2 was not reduced but left as before and the jama of the imali share was reduced by Rs. 2-11-11 which was assigned to account No. 4. In this way from June 1884 to March 1904 for a period of 193/4 years, the jama of account No. 2 was from year to year kept up on the erroneous basis of Rs. 10-11-6, i.e., Rs. 2-11-11 more than it should have been and the result was that account No. 2 was erroneously charged with Rs. 2-11-11 multiplied by 19 3/4, Rs. 54-3-5 in excess. The arrear shewn on the March kist of 1904 is Rs. 52-4-4 and if the accounts of the Collector had been correctly kept, the account No. 2 would not only have been not in arrears in March 1904 but have had an excess payment of Rs. 1-15-1 to its credit. It is contended that even the figure of Rs. 10-11-6 is not correct and it should have been Rs. 9-14-4. Upon this amount being taken as the correct jama for the original No. 2, the excess payment would be much more on the 28th of March 1904, so that on either calculation, there was no arrear due from account No. 2 on the 28th of March 1904, and the proceedings for the sale of account No. 2 for the March kist of 1904 are entirely void, and consequently the sale of the entire mahal under Section 14 is also void. See Balkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513. The learned Subordinate Judge says that 'If the plaintiff's Pleader had shown by means of chalans that the owners of khata No. 2 have all along paid their share of Rs. 8 rent since the opening of the khata No. 4 and that the arrear is due to their not paying Rs. 2 odd, then that would have shown to some extent the reason of his contention. Here also the learned Judge is under a clear misconception. For as soon as we have it that since 1884, khata No. 2 has been charged with Rs. 10-11-6 and that on the March 29th of 1904, the arrear due on that basis was Rs. 52-4-4, the natural conclusion must be that the owners have paid the balance. There is another view of the case also in which the sale can be held to be ultra vires. Taking it for granted that the Collector's books were all correctly kept and that the plaintiffs were not entitled to rely upon the legally payable proportion of revenue for account No. 2, the arrear upon the 29th of March 1904 was Rs. 52-4-4 for account No. 2.
4. Account No. 2 was put up for sale for that amount on the 6th June 1904 and the bills not reaching the said amount of arrear, the Collector declared that the whole mahal would be sold if the co-sharers did not make a purchase under Section 14 within 10 days, i.e., up to the 17th June 1904. Now the June kist fell due on the 7th June 1904 and the owners made payments for that kist. When the co-sharers did not take advantage of the offer of the Collector under Section 14 up to the 17th June, he had to sell the whole estate for such arrears as would be due upon the whole estate at that time. What he did, however, was that he closed the accounts up to 29th March 1904 and taking into account all excess payments made by other co-sharers up to March 29th found an arrear of Rs. 3 odd upon the whole estate as due for the March kist 1904 and sold the whole estate on the 19th September 1904 for this arrear of Rs. 3 odd as due up to the 29th March 1904. It is admitted that upon the basis of the Collector's books this would be the arrear up to the 29th March and Rs. 2-0-6 the arrear up to the June kist upon the whole estate, and the respondent contends that as there were arrears on the March kist as well as on the June kist, the mahal was liable to sale and the question of ultra vires goes out and the appellants cannot succeed on the errors and irregularities pleaded, as they were not specifically pleaded in the appeal before the Commissioner. It is admitted that the Collector was bound to close all the separate accounts before he could sell the entire estate under Section 14. The Collector became entitled to sell the whole estate on the 17th June 1904. On that date, all the separate accounts must be considered as merged in one account for the whole estate, and if on that date all demands up to that date and all payments up to that date including the June kist were taken one against the other, there would be no arrear on the March kist but there would be an arrear of Rs. 2-0-6 for the June kist. There being no arrear for the March kist, a sale held expressly for such an arrear would be ultra vires although the sale might legitimately have been held for the June kist, which it was not. Therefore, on either view of the case, i.e., whether we take the Collector's books as incorrect and base our calculation on the correct revenue assignable to the several accounts, or whether we take the Collector's books as correct and consider how the Collector should have closed the separate accounts, there was no arrear for the March kist of 1904 and the sale must be held to be ultra vires and void. Having held that the sale was void on the first branch of the case, it is not necessary to go into the question of fraud and reconveyance. The Warned Subordinate Judge was of opinion that defendant No. 3 was the servant of defendants Nos. 1 and 2 and that he was the agent of some of the plaintiffs for the payment of revenue, but that the treachery to the maliks of Fakruddinpur could not be of any avail to plaintiffs Nos 1--9, who are maliks of Pakri Fatehulla with which defendant No. 3 had no concern. That is not, however, the right view to take of the case. If Wakif Hussen was the agent of some of the plaintiffs and the servant or agent of defendants Nos. 1 and 2 and also interested as a co sharer in the right of his father and uncle in one of the mouzas comprising the estate, and if he brought about the sale in breach of his duty to the Pakri maliks whose agent he was and if the defendants Nos. 1 and 2 took advantage of his treachery, no Court of Justice would be inclined to allow defendants Nos. 1 and 2 to retain the benefit of the sale. As we have said, however, we do not think it necessary to go into these questions as our decision on the first branch of the case is quite sufficient to dispose of the appeal. The result, therefore, is that the appeal is decreed with costs of both the Courts. The sale is declared inoperative. The plaintiffs will recover possession of their shares with mesne profits, the amount of which will be ascertained in execution. The purchaser defendants will be entitled to a refund of the purchase-money with interest at the legal rate.