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Mahammad Mehdi Hassan Khan and anr. Vs. Sheoshankar Persad Singh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.353
AppellantMahammad Mehdi Hassan Khan and anr.
RespondentSheoshankar Persad Singh and ors.
Cases ReferredRai Mohan Saha v. Sasanha Mohan Roy
Excerpt:
revenue sale law act (xi of 1859), sections 10, 11, 53 - bengal land registration act (vii b.c. of 1876), section 70--separate accounts, opening of, by collector without jurisdiction, effect of--civil procedure code (act xiv of 1882), section 575--civil procedure code (act v of 1908), section 98, sub-section (2)--point of law only to be referred. - brett, j.1. the entire mehal raiputti bearing towji no. 3143 in the saran collectorate was sold for arrears of revenue by the collector, proceeding under the provisions of section 14, act xi of 1859, and was purchased in the name of defendant no. 7, babu gopal das.2. fifteen separate accounts or khatas,.besides one for the residuary share, had been opened many years ago by the collector, and defendant no. 2 being the malik of khata no. 1 executed three deeds of mortgage in favour of babu sheo shankar prosad singh, defendant no. 1 on the 9th december 1886, 13th. december 1888 and 1st july 1893, respectively. afterwards, the share in respect of which khata no. 1 had been opened was sold for arrears of revenue due on that share, and purchased by pardip narain singh, defendant no. 6 subject.....
Judgment:

Brett, J.

1. The entire Mehal Raiputti bearing Towji No. 3143 in the Saran Collectorate was sold for arrears of revenue by the Collector, proceeding under the provisions of Section 14, Act XI of 1859, and was purchased in the name of defendant No. 7, Babu Gopal Das.

2. Fifteen separate accounts or Khatas,.besides one for the residuary share, had been opened many years ago by the Collector, and defendant No. 2 being the malik of Khata No. 1 executed three deeds of mortgage in favour of Babu Sheo Shankar Prosad Singh, defendant No. 1 on the 9th December 1886, 13th. December 1888 and 1st July 1893, respectively. Afterwards, the share in respect of which Khata No. 1 had been opened was sold for arrears of revenue due on that share, and purchased by Pardip Narain Singh, defendant No. 6 subject to encumbrances. Defendant No. 1 afterwards brought a suit on the three mortgage-bonds, No. 67 of 1897, against defendants Nos. 2 to 6 and obtained a decree by consent for Rs. 17,281-10.

3. On the 25th March 1899, the share, in respect of which Khata No. 4 had been opened, and which belonged to Kalika Prosad Singh, was pat up for sale for arrears of revenue due on that share. No bids being offered, the Collector proceeded under Section 14 of Act XI of 1859 and put up the entire estate, No. 3143, for sale and it was purchased by defendant No. 7 for Rs. 1,600.

4. Defendant No. 1 then took out execution of his mortgage, decree obtained against the proprietors of the share in respect of which Khata No. 4 had been opened, praying for sale of that share in execution of his decree. Thereupon, defendant No. 7 brought a Suit No. 51 of 1904 to have it declared that his purchase of estate No. 3143 was free of all encumbrances, and asked for a temporary injunction restraining the defendant No. 1 from selling the share. The injunction was granted on condition of defendant No. 7 depositing Rs. 1,454 8, being the amount of interest due on defendant No. 1's mortgage up to 1st August 1906. In that suit defendant No. 1 pleaded that it was incompetent; as defendant No. 7 was merely a benamdar of the two plaintiffs. The plea was allowed and the suit was dismissed. Defendant No. 1 then drew out the Rs. 1,458-8 from deposit.

5. On the 2nd March 1907 defendant No. 7 executed a deed of conveyance of the entire estate No. 3143 in favour of the plaintiffs for Rs. 12,000, the deed to be treated either as a deed of sale or a deed of release.

6. Defendant No. 1 again took out execution of his mortgage decree and the share in respect of which Khata No. 4 had been opened was advertised for sale on the 5th August 1907.

7. Plaintiffs instituted the present suit on the 30th July 1907 for a declaration that defendant No. 1 is not entitled to sell the share in respect of which Khata No. 4 had been opened on the ground that plaintiffs had purchased the entire estate free of all encumbrances. They also claimed, as assignees of defendant No. 9, to be entitled to recover from defendant No. 1 the sum of Rs. 1,451-8 deposited by defendant No. 7 to cover interest on the mortgage-debt of defendant No. 1.

8. The plaintiffs' case as set out in their plaint was that as the entire estate had been sold for arrears of Government Revenue and purchased by defendant No. 7 a stranger, and subsequently purchased from him by the plaintiffs, the plaintiffs acquired the estate free from all incumbrances. In the suit brought by defendant No. 7, No. 51 of 1904, to which reference has already been made, it was held that defendant No. 7 was merely a benamdar for the plaintiffs, but at the same time the opinion was expressed in the judgment that, as the plaintiffs Were sharers in respect of whom a separate account had been opened by the Collector under the provisions of Sections 10 and 11 of Act XI of 1859, they came within the exception stated in Section 53 of the same Act and they purchased the estate free of all incumbrances.

9. This latter ground, though not expressly stated in the plaint, was the one on which the plaintiffs relied in support of their suit in the lower Court.

10. Numerous issues were framed in the lower Court, but those which are of importance for the purposes of this appeal are Nos. 5, 10, 11 and 6.

11. Issue No. 5 is as follows: Are the plaintiffs purchasers of this estate free from incumbrances

12. Issue No. 10 runs as follows: Were the plaintiffs such sharers in Mehal Raiputti, Towji No. 3143 before the Revenue sale dated the 6th June 1890, as to come within the exception mentioned in Section 53 of Act XI of 1859

13. Issue No. 11 is as follows: Was there any separate account validly and legally opened under Sections 10 and 11 of Act XI of 1859 on behalf of the plaintiffs? If not, whether the defendant No. 1 is competent to question the validity and legality of the separation of the account effected before the Revenue sale.

14. Issue No. 6 is as follows: Are plaintiffs as assignees of defendant No. 7 entitled to get a refund of Rs. 1,454-8 deposited by defendant No. 7 in Court and withdrawn by defendant No. 1

15. The Subordinate Judge decided all these issues against the plaintiffs.

16. The plaintiffs claimed to be sharers in the share in the estate in respect of which Khata No. 5 had been opened by the Collector. In fact, that separate account was opened on the 16th April 1872 by an order of the Collector of Saran. The original petition for the opening of a separate account was made by Ram Anugrah Singh, Rama Kanta Singh and Musammat Sarawan Koer (apparently the widow of a deceased brother of the two first mentioned persons.) The Mehal Raiputti estate No. 3143 consists of 17 mouzahs and the petition stated that Rara Anugrah and Rama Kanta were proprietors of certain sharesinl5of these and that Musammat Sarawan Koer was the proprietor of the same share in the remaining two mouzahs. An objection seems to have been raised in the office of the Collector to the three persons joining in one petition, and accordingly an amended petition was filed, as ordered by the Collector, excluding Musammat Sarawan Koer, and on this amended petition the order was passed on the 16th April 1872 directing that the separate account be opened.

17. Subsequently, a portion of the shares of the heirs of Ram Anugrah Singh and of Rama Kanta Singh was sold by auction in satisfaction of decrees obtained against them by the plaintiffs, and were purchased by the plaintiffs and sale-certificates were obtained by them on the 13th June 1896. The plaintiffs appear to have been registered afterwards in the Collectorate. So far as the materials on the record go, the plaintiffs appear to have purchased only a portion of the shares which descended to the heirs of Ram Anugrah Singh and Rama Kanta. That point is not clearly dealt with in the lower Court. All that the Subordinate Judge says in his judgment is that the 'plaintiffs are fractional sharers in 8 or 9 mouzahs out of the 15 or 16 included in Khata No. 5.' No argument appears, however, to have been raised on the point that the plaintiffs were not purchasers of the entireshares of Ram Anugrah and Rama Kanta, the sharers in whose favour the separate account No. 5 was originally opened.

18. he learned Judge held that because Ram Anugrah and Rama Kanta Singh were persons who owned shares only in 15 or 16 mouzahs out of the 17 or 18 comprised in the mehal, and as such were neither sharers in all the mouzahs making up the mehal, nor the sole owners of the 15 or 16 mouzahs which go to make up with the shares of the other mouzahs the entire mehal Towji No. 3143, therefore, they were not sharers who, under Sections 10 and 11 of Act XI of 1859, could apply to the Collector to have a separate account opened in their favour. In consequence, the Collector had no jurisdiction to open a separate account under Sections 10 and 11 of Act XI of 1859 with them. In support of this finding, he relied on the decision of this Court in the case of Nunhoo Shahee v. Ram Pershad 21 W.R. 38 and arriving at these conclusions the Subordinate Judge held that the plaintiffs not being sharers in whose favour separate account had been legally opened by the Collector they were not entitled to claim the benefit of the exception in Section 53 of Act XI of 1859, and that, therefore, their purchase of the entire estate was not free from incumbrances.

19. Further, he held that even if the separate account opened by the Collector in favour of Ram Anugrah Singh and Rama Kanta Singh could be held to be one opened under Section 70 of Act VII B.C. of 1876, Land Registration Act, they could not claim the benefit of Section 53 of Act XI of 1859 as that Section only included sharers in respect of whom separate shares had been entered under Sections 10 and 11 of Act XI of 1859.

20. Accordingly, he held that the plaintiffs were not entitled to the declaration sought for in the suit, nor to recover from defendant No. 1 the sum of Rs. 1,454-8 deposited by defendant No. 7.

21. The suit was dismissed with costs and plaintiffs have appealed.

22. It appears that separate account or Khata No. 1 was originally opened on the 6th January 1872 in the name of Kishendeo Singh, who is represented in the present case by defendants Nos. 2 to 5. This is the share against which defendant No. 1 has obtained the mortgage-decree.

23. Separate account or Khata No. 4 was opened on the 21st March 1872 in the name of Kalika Prosad Singh. This is the share which defaulted.

24. Separate account or Khata No. 5 was opened on the 16th April 1872 in the names of Ram Anugrah and Rama Kanta Singh on the 16th April 1872. This is the share in which the plaintiffs claim rights by purchase.

24. Now, rightly or wrongly, these separate accounts had been opened for 35 years before the present suit was brought; revenue had been all along paid in respect of these shares into the separate accounts, and it would appear that the shares in respect of which these separate accounts had been opened, had been put up for sale, each separately, in respect of arrears due on its separate account. The proprietors of these shares in respect of which the separate accounts had been opened had dealt with them separately, and there have been transfers and alienations of the shares as shares in respect of which separate accounts have been opened.

25. It is first argued in support of this appeal that the Subordinate Judge was in error in holding that the order of the Collector opening the separate account No. 5 in respect of the share on which the plaintiffs are part purchasers could be questioned after the lapse of 35 years. No authority other than the Collector had power under the law to open a separate account and the law gave him full power to open an account. If, in ordering that an account be opened, he committed an error in law that could not make his order bad for want of jurisdiction. In the case of Khata No. 5 the record shows that the provisions of the law were fully complied with before the order was passed directing that the account be opened. The necessary notices were served and no objection was taken by any one who would at the time have been interested in opposing the application. Nor was any appeal preferred against his decision to the higher Revenue authorities as might have been done. His order, therefore, became final.

26. Furthermore, if the order opening this separate account be now interfered with, the order relating to all the other accounts would be equally open to question with the result of disturbing rights long recognized and of creating uncertainty, confusion and hardship.

27. Undoubtedly, the separate account has been opened and has been in existence for 35 years. It is impossible now to treat it as though it had never had any existence, indeed the defendant No. 1's own decree is based on the existence of the separate account No. 1, against the share covered by which he is seeking to enforce his mortgage-decree. That share was in fact sold for its own arrear after the decree had been obtained by defendant No. 1.

28. Also, it is argued that defendant No. 1 being the transferee by mortgage of the rights of some co-sharera in the estate, it is not open to him now to question the legality of an order of the Collector which his transferors accepted and have acquiesced in for 35 years. There was a remedy in the superior Revenue Courts when the Collector's order was passed and that remedy never having been sought and on the contrary the order having been acquiesced in for 35 years it cannot now be questioned and declared invalid by a Civil Court.

29. It is also contended that even accepting, though not admitting, that the separate account could not have been opened under the provisions of Sections 10 and 11 of Act XI of 1859 [still any defect would be covered by Section 70 of Act VII B.C. of 1876, and Section 71 of that Act which makes the provisions relating to sale included in Sections 13 and 14 of Act XI of 1859] applicable to accounts opened under Section 70 of Act VII B.C. of 1859 would also operate to bring the sharers in respect of whom the separate -share had been opened within the exception provided by Section 53 of Act XI of 1859.

30. It has also been suggested that defendant No. 1 is bound by the finding of the Court in the Suit No. 51 of 1804 to which he was a party.

31. As to this last contention we have only to observe that it has no weight. The suit was dismissed for other grounds and the opinion expressed by the Judge was not necessary for the decision of that suit and so cannot bind the defendant.

32. The most important question is certainly whether, after the lapse of 35 years, a Civil Court can call into question the order of a Revenue Court, which order was originally passed with all the formalities required by the law, which was not appealed against and so became final as regards the parties affected by it, and which has been acquiesced in by the persons through whom the defendants, who now desire co dispute the order, claim title. In consequence of that order of the Collector and of other similar orders for the opening of separate accounts in respect of other shares in the same estate, rights have been lost, sold, or transferred, and to disturb the order after the lapse of so many years would be to render uncertain titles long existing and to create confusion and hardship.

33. In my opinion, the Collector certainly had jurisdiction to open the separate account. If, at the time of opening the account, he misunderstood the provisions of the law that would not necessarily make his order void but voidable by the persons affected thereby. In the present instance none of the persons who were affected by the order have ever raised any objection to it, and the question is whether the defendant No. 1 as mortgagee of defendant No. 2 whose share, in respect of which Khata No. 1 was originally opened, has subsequently been sold, can be allowed to raise the objection in this suit.

34. In my opinion, the order of the Collector, acquiesced in and acted on for 35 years, is not now open to question by a Civil Court, and, if it were, the defendant No. 1, who acquiesced in the order all along, cannot be allowed in this suit to dispute the legality of the order.

35. The contention that the order is illegal depends entirely on the decision of this Court in the case of Nunhoo Shahe v. Ram Pershad 21 W.R. 38. That decision was delivered on the 15th December 1873. The judgment states that plaintiff comes into Court upon a statutable cause of action and that his suit must be dismissed unless he brings himself either within Section 10 or Section 11 of Act XI of 1859. Exactly what the cause of action was is not stated. Apparently, he sued to have it declared that he had a right to have a separate account opened in respect of his share in the estate. As, however, he was only an eight-annas share-holder in 4 mouzahs out of the 6 which constituted the whole estate it was held that he was not a recorded sharer of a joint estate in common tenancy within Section 10.' It was further held that he could not come under Section 11 because he was not recorded sharer of a joint estate whose share consists of a specific portion of the land of the estate because he had only an undivided moiety of 4 mouzahs out of 6. If he had been joined with his co-sharers in the 4 mouzahs he might possibly have come before the Court with them as a party entitled to sue under Section 11.

36. In the present case, the original petition for opening a separate account was made by Ram Anugrah Singh, Rama Kanta Singh and Musammat Sarawan, who together, apparently as members of one family, held shares in all the mouzahs included in the estate. The name of Musammat Sarawan was withdrawn by order of the Collector on a report from an officer of this Court. In thejudgment relied on it is not stated what would be the effect if, in a case like the present, the defendants had shares in 15 out of 17 mouzahs and joined in their application those co-sharers who had shares in the other two mouzahs. Apparently, the application would then have fulfilled the requirements of Section 10 of Act XI of 1859. There is nothing to support the view that shares in a joint estate held in common tenancy must have equal shares in all the mouzahs. Unequal shares in the different mouzahs might be consistent, too, with definite shares held in common in the whole estate.

37. There is no provision of the law that I am aware of, which lays down that the shares of tenants in common must be equal, either in every one of several mouzahs making up the estate, or in the entire estate.

38. In these circumstances, it seems open to doubt whether, on the; basis of the decision relied on, the original application for the opening of the separate account did not fulfil the requirements of the law.

39. I am unable to agree, therefore, in the view taken by the lower Court that the suit of the plaintiffs must fail because they could not be regarded as sharers with whom the Collector under Sections 10 and 11 of Act XI of 1859 had opened separate estates.

40. The question arises whether they are entitled to claim to come within the exception provided by Section 53, by reason of the fact that they are only fractional share-holders of the share in respect of which the separate account was opened. There is nothing in the Section to restrict the operation of the Section to sharers holding the entire interest in the share; in these circumstances, I see no reason to hold that they do not come within the exception.

41. The result of these findings is that I hold that the plaintiffs are entitled to the relief claimed in this suit, that is to say, to have it declared that they purchased the estate No. 3143 free of all incumbrances. In these circumstances, I hold that they, as assignees of defendant No. 7, are also entitled to recover from defendant No. 1 the sum of Rs. 1,454-8 which had been deposited by defendant No. 7 in order to obtain the injunction in this suit, with interest at 6 per cent, per annum on that account up to the date of realization.

42. I would accordingly set aside the judgment and the decree of the lower Court and grant the plaintiffs a decree to the above effect. Plaintiffs are entitled to costs from defendant No. 1 in both the Courts.

43. As, however, my learned brother holds a different opinion, the appeal must be referred to the Hon'ble the Chief Justice under the provisions of Section 98 of the Code of Civil Procedure in order that it may be referred to a third Judge for hearing.

Vincent, J.

44. The facts of the case which has given rise to this appeal are as follows: Mehal Raiputti is an estate borne on the Revenue Roll of the District of Saran with a revenue of Rs. 7,233 and odd. In the year 1899 fifteen separate accounts had been opened by different sharers in that estate under the provisions of Section 70 of Act VII (B.C.) of 1876. One of these shares, viz., that covered by separate account No. 5 was opened by the plaintiffs. In January 1899, separate account No. 4 fell into arrears and was put up for sale on 25th March. The highest bid for the share was not sufficient to cover the arrears and, therefore, the Collector ordered that the sale of the share should be stayed and the whole mehal put up to sale under Section 14 of the Revenue Sales Act.

45. On 6th June 1399, the whole estate was sold and bought for Rs. 16,200 in the name of the defendant No. 7.

46. The defendant No. 1 had a mortgage-decree for Rs. 17,281 against 13 villages included in the mehal, and in 1899 he advertised the mortgaged property for sale in execution of that decree.

47. The defendant No. 7 then sued for a declaration that his purchase at the revenue sale was free of incumbrances and that the property could not be sold in execution of the mortgage-decree and on a deposit of Rs. 1,454 as security against any loss the defendant No. 7 on the 14th March 1906 secured from the High Court, a temporary injunction staying the sale. That suit was dismissed as it was found that the defendant No. 7 Gopal Dass was a farzidar for the plaintiffs, whereupon the mortgagee, defendant in that suit, withdrew the Rs. 1,454 in deposit. On 2nd March 1907 the defendant No. 7 executed a conveyance of all his rights in the mehal and in the Rs. 1,454 to the plaintiffs; and the plaintiffs now sue for a declaration that the defendant No. 1 has no right to sell the estate in execution of his mortgage-decree and that the purchase at the revenue sale was free of all incumbrances. The plaintiffs further seek to recover from the defendant No. 1 Rs. 1,454-8 plus interest on that sum alleging that the defendant No. 1 wrongly withdrew that amount from deposit in satisfaction of his decrees.

48. The real contending defendant is defendant No. 1. In the Court of first instance he raised a number of objections to the suit, which it is not necessary to set forth at length in this judgment, as only one point has been discussed in the argument before us.

49. It suffices to say that on the 10th September 1908, the plaintiffs' suit was dismissed by the Subordinate Judge on the ground that these plaintiffs, who were the real purchasers at the revenue sale, had bought the property subject to incumbrances.

50. The learned Subordinate Judge found that the plaintiffs were co-sharers in the mehal t and was, therefore, of opinion that their purchase was under Section 53 of Act XI of 1859 subject to incumbrances unless it is shown that they were sharers with whom the Collector had opened separate accounts under Sections 10 and 11 of the Act. He further found, that although there was a separate account opened in the name of the predecessor-in-interest of plaintiffs in 1872 by the Collector for their share in this mehal, nominally under Section 10 of Act XI of 1859, yet that account was opened without jurisdiction and that it could not, therefore, be said that the plaintiffs were persons with whom separate accounts had been opened under that section.

51. It this view of the facts, the plaintiffs' suit was dismissed and hence this appeal has been filed.

52. The only point argued i 1 the appeal is whether the purchase by the plaintiffs through defendant No. 7 was a purchase free of incumbrances under Section 53 of Act XI of 1859.

53. Now, the decision of the learned Subordinate Judge is based on the wording of Section 10 of Act XI of 1859. That Section enacts that a recorded sharer of a joint estate, held in common tenancy, if he desires to pay in his share of the revenue of the estate separately may submit an application to the Collector to that effect; and the Collector may after notifying the facts in a particular manner after a period of six, weeks if no objections are made, open a separate account as desired. If any objection of any kind is raised by any other co sharer, the Collector must at once refuse to take further action and refer the matter to the Civil Court under Section 12.

44. Under Section 53 of the same Act, if a co-sharerin an estate purchases the estate at a revenue sale, he acquires it subject to incumbrances except in the case of sharers with whom the Collector has opened separate accounts under Sections 10 and 11 of the Act.

45. The Subordinate Judge finds that the predecessors-in-interest of the plaintiffs were not in fact sharers in a joint estate held in common tenancy, because they owned shares in 14 or 15 mouzahs only out of the various villages, 18 in number, comprising the estate and were not interested in every village in the estate. The Subordinate Judge is of opinion in these circumstances that the Collector had no jurisdiction to open a separate account with the predecessor-in-interest of the plaintiffs under Section 10 of Act XI of 1859, and that the plaintiffs cannot be accepted as co-sharers with whom the Collector had opened separate accounts under that section, there being no jurisdiction under that Section and that, therefore, their purchase was not free of, but subject to, incumbrances.

46. On appeal it is argued that the expression 'estate held in common tenancy' has been misunderstood by the learned Subordinate Judge; that in any case the Collector had jurisdiction to open a separate account under Section 10 and has done so, and that the order cannot be said to have been made without jurisdiction and further that as all the sharers in the estate including the persons from whom the defendant derives title made no objection at the time and as the separate account was opened and accepted for 27 years before the sale, the validity of the order cannot now be questioned. It is further urged that in any case the separate account could have been opened under Section 70 of Act VII (B.C.) of 1876, and that it should be held to have been opened under that Section if necessary, and that the effect then would be same as if it had been opened under Section 10 of Act XI of 1859.

47. None of these arguments appear to me to be of very great weight. Section 53 of Act XI of 1859 lays down that if a sharer in an estate purchases the estate at a revenue sale, he does so subject to all incumbrances existing at the time of the sale unles3 the purchasing co-sharer or sharers are persons with whom the Collector has opened separate accounts under Sections 10 and 11 of the Act. Section 10 of the Act empowers a Collector to open separate accounts in joint estates held in common tenancy, on the application of a recorded co-sharer. If there is no joint estate held in common tenancy then, in my view of the law, Section 10 has no application and the Collector has no jurisdiction to open a separate account under that section and if he does open a separate account without jurisdiction then it cannot be said that the separate account is one opened under Section 10 of the Act. Before that section can apply at all it is necessary that the estate should b8 one held in common tenancy, and if the estate is not so held the section has no application. Now mehal Raiputti is not an estate of that description. The expression 'estate held in common tenancy' is defined in Section 30 of Regulation XIX of 1814 as meaning an estate where all the sharers have a common right and interest in the whole of the estate. Where, therefore, various co-sharers have certain interests, not in the whole estate but only in particular villages in that estate, it cannot be said that the estate is held in common tenancy; this view has also been accepted in this Court in the case of Nunhoo Shahee v. Ram Pershad 21 W.R. 38. Mr. Justice Phear in that case says that the plaintiff confessedly cannot bring himself under Section 10 of Act XI, because only an eight annas share-holder in four mouzahs out of the six which constitute the whole estate and he is, therefore, not a recorded sharer of a joint estate held in common tenancy' within the meaning of Section 10. The same view has been accepted by the revenue authorities in the Board's Miscellaneous Proceeding No. 306, dated 21st September 1876, quoted at page 19 of the Revenue Sale Manual where the Hon'ble Members of the Board of Revenue take the definition of an estate of this character as given in Regulation XIX as applicable to Section 10 of Act XI of 1859, and state that a separate account cannot be opened under Section 10 unless there is an estate held in common tenancy as set forth in Section 30 of Regulation XIX of 1814.

48. Finally, in 1876 the Legislature recognised the difficulties that existed in regard to separate accounts in estates like the present one, and Section 70 of that Act was enacted apparently to specifically provide for the opening of separate accounts in the case of proprietors who were recorded as owning an undivided interest held in common tenancy in any specific portion of the lands of an estate but not extending over the whole estate. If there previously had b6en any right to open separate accounts in such cases, there would have been no need for this change in the law.

49. In these circumstances, I hold that the separate account in this estate was improperly opened under Section 10 of Act XI of 1859 in 1872, and that the Collector had no jurisdiction under that Act to open any such separate accounts in this estate, and it cannot be said, in my opinion, that any separate account opened by him was a separate account opened under the provisions of Section 10 of Act XI of 1859, and the owner of any separate account opened without jurisdiction is not, in my opinion, entitled to claim the benefit of Section 53 of Act XI of 1859 which merely relates to the case of co-sharers with whom separate accounts have been opened under Sections 10 and 11.

50. It is true that a separate account No. 5 was opened 27 years before the sale and the validity of the order of the Collector was not questioned, but this does not in my view of the law affect the case or give validity to an order which was made without jurisdiction. Nor can the defendants in the suit be prejudiced by any such act of the Collector.

51. It is then urged that as the account remained open after Act VII of 1876 was passed, it should be held to be a separate account under that section. I do not think, however, that this contention has any force. The separate account No. 5 was not opened under Section 70 of Act VII (B.C.) of 1876, and does not purport to have been opened under that section, and, further, no notices were issued under that Section to the sharers interested in the estate after the Act of 1876 was passed. Moreover, the privileges given under Section 53 of Act XI of 1859 to the owner of a separate account opened under Sections 10 and 11 of that Act are not apparently extended to those who have opened separate accounts under Section 70 of Act VII of 1876 (B.C.). Section 71 of the Act extends the provisions of Section 13 and 14 of Act XI to separate accounts opened under Act VII of 1876, but it is at least open to doubt how far this section makes Section 53 of Act XI apply to those who have opened separate accounts under the Land Registration Act.

52. In this view of the facts and the law, the plaintiff in this suit who is a co-sharer in the estate of Baiputti and bought the estate at a revenue sale not being a co-sharer who has opened a separate account under Section 10 or 11 of Act XI of 1859, purchased the estate subject to any incumbrance that there was on it and he, therefore, bought the share mortgaged to the defendant subject to the lien created by that mortgage and is not entitled to any relief in this case. In my opinion, therefore, the appeal should be dismissed with costs.

53. It is true that the defendant No. 7 had no right to withdraw the deposit of Rs. 1, 454 before the sale of the mortgaged property was complete and it was found that the sale-proceeds were not sufficient to liquidate his claim, but this amount would be in any case payable out of the mortgaged property and the amount will, no doubt, be deducted from the mortgage dues when the decree is executed.

54. It seems, therefore, that it is unnecessary and would be improper for the Court to order a refund of the amount in the present suit.

Mookerjee, J.

55. This is a reference under Section 98, Sub-section (2), of the Civil Procedure Code of 1808. The reference is not strictly in form, because the learned Judges have omitted to state specifically the point of law upon which they differed. The difference between Section 575 of the Code of 1882 and Section 98 of the Code of 1908 appears to have been overlooked. Under the former Code, it was the appeal that was referred to a third Judge, when the Judges hearing the appeal differed in opinion on a point of law, and on such reference, the whole appeal was open for argument, and not merely the point of law on which the Judges had differed in opinion. Under the Code of 1908, the proper procedure is to state the point of law upon which the Judges differ; the appeal is then to be heard upon that point only, and what is to be decided is not the appeal but the point of law only. In the case before me, this procedure has not been followed; but the parties are agreed that there is only one point of law involved in the appeal, upon which the learned Judges who heard the appeal in the first instance, have differed, as is manifest from their recorded opinions. That point may be formulated as follows:

Is a proprietor, who is not a recorded sharer of a joint estate held in joint tenancy, within the meaning of Section 10 Act XI of 1859, nor a recorded sharer whose share consists of a specific portion of the land of the estate within the meaning of Section 11, but is recorded as proprietor of an undivided interest held in common tenancy of a specific portion of the lands of the estate but not extending over the whole estate, within the meaning of Section 70 of the Bengal Land Registration Act, 1876, entitled to claim the benefit of the exception made in Section 53 of Act XI of 1859 in favour of sharers with whom the Collector has, under Section 10 or Section 11 of the Act, opened separate accounts

56. My learned brother Brett is of opinion that this question ought to be answered in the affirmative. My learned brother Vincent, on the other hand, is of opinion, that the question ought to be answered in the negative. To determine which of these two conflicting views should prevail, the provisions of the Revenue Sale Law (Act XI of 1859) and of the Land Registration Act (VII of 1876, B.C.) must be examined.

57. It is necessary to premise at the outset that one of the proprietors of a joint estate may be in enjoyment of his interest therein, in one of three ways, namely, first, he may be a recorded sharer of the whole joint estate held in common tenancy; secondly, he may be a recorded sharer of the joint estate and his share may consist of a specific portion of the land of the estate; or, thirdly, he may be recorded as proprietor of an undivided interest held in common tenancy in a specific portion of the land of the estate but not extending over the whole estate. If his interest is of the first description he may apply to have his share separated and a separate account opened under Section 10 of Act XI of 1859. If his interest is of the second description, he may have his share separated and a separate account opened under Section 11 of Act XI of 1859. If his interest is of the third description, he may have his share separated and a separate account opened under Section 70 of the Land Registration Act. In this connection, it is important to bear in mind that, under Section 71 of the Land Registration Act, Section 12 of Act XI of 1859 is made applicable to an application under Section 70, and further provided that the effect and consequences of opening a separate account under Section 70 shall be such and the same as are described in Sections 13 and 14 of Act XI of 1859. It is manifest, therefore, that the consequences of the opening of a separate account in cases covered by Section 70, (that is, where the applicant is proprietor of an undivided interest held in common tenancy in a specific portion of the land of the estate, but not extending over the whole estate), are assimilated to the consequences of opening a separate account under Section 10 or Section 11 of Act XI of 1859, only in so far as Sections 13 and 14 are concerned, that is, only in respect of the sale of the separated share and of the entire estate under certain specified conditions. Now, when we turn to Section 53 of Act XI of 1859, we find that it defines the rights of a purchaser at a revenue sale, who is a recorded or unrecorded proprietor or co-partner. Such person, whether he purchases the property at a revenue sale or acquires it by re-purchase from the purchaser, acquires the estate, to put the matter briefly, subject to all its incumbrances existing at the time of the sale. An exception, however, is made in favour of sharers with whom the Collector has opened separate accounts under Sections 10 and 11 of the statute; they stand in a position of advantage, which is denied to the purchaser co-partner who has not opened a separate account under either of these sections. I am not concerned with the policy of the Legislature in this respect; but it is remarkable that the privilege is not extended to persons who have opened separate accounts under Section 70 of Land Registration Act. Section 71 as I have just observed, makes Sections 13 and 14, but not Section 53 of Act XI of 1859, applicable to the proprietor who has obtained a separate account opened under Section 70. The inference is irresistible that the co-partner whose interest is of the description mentioned in Section 70, and whose separate account has been opened under that section, can purchase the estate at a revenue sale, only as subject to incumbrances. The question, then arises, does it make any real difference if a separate account, which could not be opened under Section 10 or Section 11 of Act XI of 1859, because the interest of the proprietor was not of either of the two descriptions mentioned in these sections, has been opened by the Collector without any jurisdiction? In my opinion, it makes no difference whatsoever. The position of the proprietor who has obtained a separate account so opened in contravention of Section 10 or Section 11, is not identical for purposes of Section 53 with the position of the proprietor whose separate account has been properly opened. The expression 'sharers with whom the Collector has opened separate accounts under Sections 10 and 11' plainly means 'sharers with whom the Collector has opened separate accounts acting in conformity with Sections 10 and 11.' To accept any other interpretation, would be to acquiesce in a fraud on the statute. The Collector, when he opens a separate account under Section 10 or 11, performs a statutory duty; his act must be in strict conformity with the legislative provisions on the subject. If the Collector opens a separate account in clear contravention of the provisions of Section 10 and Section 11; in fact, if the Collector applies the provisions to cases to which the Legislature never intended that they should be applied, his act is without jurisdiction, and cannot confer upon the person who obtains a separate account opened under such circumstances, the statutory privilege created by Section 53. If any authority is needed in support of the proposition that where jurisdiction is usurped in contravention of statutory provisions, the act performed is a nullity, reference may be made to the decisions of the Judicial Committee in Ledgard v. Bull 13 I.A. 134 : 9 A. 191; Manikshi v. Subramania 14 I.A. 160 : 11 M. 26; Fischer v. Secretary of State 26 I.A. 16 : 22 M. 270 : 3 C.W.N. 161 and of this Court in Achha Mian v. Durga Churn 25 C. 146 : 2 C.W.N. 137; Golab Sao v. Chowdhury Madho Lal 2 C.L.J. 384 : 9 C.W.N. 956; Gurdeo v. Chandrikah Singh 5 C.L.J. 611 : 36 C. 193 : 1 Ind. Cas. 913 and Ananda Kishore v. Daije 10 C.L.J. 189 : 36 C. 726 : 1 Ind. Cas. 549. In my opinion, the view adopted by Mr. Justice Vincent is correct, and I entirely agree in his conclusion that the question of law formulated above must be answered in the negative. This view is in accordance with that taken in the case of Nunhoo Shahee v. Ram Pershad 21 W.R. 38 which, so far as I have been able to discover, has never been doubted in this Court. I observe that, with reference to this decision, my learned brother Brett remarks that the judgment does not state what the cause of action was. I have accordingly examined the records of that case. It appears that an estate Chilowley consisted of six villages. The plaintiffs were interested in an one-half share of four only of the six villages. They applied to the Collector to open a separate account for the half share of the four villages. Upon objection of the defendants, co-proprietors, the application was refused by the Collector on the 17th April 1871. On the 15th May, following, the plaintiffs sued for declaration of title and for separation of the Government Revenue of their share of the four villages. The first Court held that the suit was maintainable under Section 12 of Act XI of 1859, and made a decree in favour of the plaintiffs, though the revenue assigned was calculated on a basis other than that suggested by the plaintiffs. Upon appeal by the plaintiffs, the decree of the Subordinate Judge was affirmed by the District Judge. Upon second appeal to this Court by the plaintiffs (which related to the amount of revenue assignable in respect of the half share of the four villages), it appears to have been argued by the defendants-respondents (by way of cross-objection, though a memorandum of cross-objection is not to be traced on the part of the record still in existence) that the suit was not maintainable under Section 12 of Act XI of 1859, as the plaintiffs were not entitled to have a separate account opened under either Section 10 or Section 11. Phear and Morris, JJ., gave effect to this contention and dismissed the suit. The learned Judges held that as the plaintiffs were share-holders in some only of the villages constituting the estate, they could not claim to have a separate account opened under either Section 10 or Section 11. It is superfluous to add that upon a plain reading of the sections, no other conclusion was possible.

58. Let me now consider the effect of this view of the law upon the present question. The records of the Collector which have been called for upon the joint application of both the parties, show conclusively that, not merely the fifth separate account, the proprietor of which purchased this estate at the revenue sale held on the 6th June 1899, but all the fifteen separate accounts, had been opened during the years 1871-1874 in contravention of the provisions of Sections 10 and 11 of Act XI of 1859; the applicants were neither sharers in the whole estate nor proprietors of specific lands, but they were share-holders in some only of the many villages comprised in the entire estate, as is clearly shown by the details of the shares and villages in respect of which the separate accounts were opened This state of things has continued for many years, and has not Seen questioned by the various proprietors. The reason is obvious. When the Land Registration Act of 1876 came into force, it became clear that what had been done before irregularly, because not falling within the scope of Sections 10 and 11 of Act XI of 1859 might be validly done under Section 70 of the Land Registration Act. It would have boon idle, therefore, for the parties to challenge the validity of the separate accounts at any time after 1875. If objection had been taken by any of the proprietors, the then existing arrangement might have been validated by the presentation of applications under Section 70 of the Land Registration Act. It is not right to say that the parties now attempt to invalidate what had been done at their instance during the years 1372-74, and no such question arises as was considered by this Court in Rai Mohan Saha v. Sasanha Mohan Roy 12 C.L.J. 407 : 8 Ind. Cas. 786 namely, the right of a proprietor to question the validity of a settlement of an estate irregularly made. If we look at the substance of the matter, the position of the parties is identical with what would have been their position if the separate accounts had been, as they could have been, opened under Section 70 of the Land Registration Act. There is no controversy that, if they be deemed to have been opened under Section 70 of the Land Registration Act, the purchaser at the revenue sale is not entitled to claim the benefit of the exception in Section 53 of Act XI of 1859. The conclusion follows that the view adopted by Mr. Justice Vincent, in concurrence with the Court of first instance, that the purchaser has acquired the property subject to encumbrances, is correct and must be upheld.

59. It is satisfactory to find that this view of the law is manifestly in accord with the justice of the case. We have some indication of the value of the property, when we remember that the mortgagees advanced more than Rs. 13,000 on security of the share of the villages comprised in the first separate account which may be assumed to be worth at least that sum. The value of that share, as shown by the proportion of the total Government Revenue assigned to it, is about one-sixth of the value of the entire estate. The whole estate, therefore, is worth, at a very moderate estimate, at least Rs. 78,000. The purchaser has acquired it for Rs. 16,200; the charge claimed by the mortgagee amounts approximately to Rs. 20,000; even if the purchaser has to pay this charge, as in concurrence with Mr. Justice Vincent, I hold that he is bound to do, he has made an excellent bargain; in fact, the very small price paid by the purchaser indicates plainly that he, at any rate, must have thought that he was acquiring the property subject to incumbrances.

60. The result, therefore, is that in concurrence with Mr. Justice Vincent, I hold that the decree of the Subordinate Judge must be affirmed, and this appeal dismissed with costs. The hearing fee of the two hearings is assessed at Rs. 1,000.


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