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Bejoy Krishna Mookerjee Vs. Lakshmi NaraIn Jiu (idol) and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.736
AppellantBejoy Krishna Mookerjee
RespondentLakshmi NaraIn Jiu (idol) and ors.
Cases ReferredBejoy Chand v. Amrita Lal
Excerpt:
bengal putni taluks regulation (viii of 1819) section 8, 10, 13, 14 - 'day,' meaning of--putni sale--payment to officer of zemindar before sale, effect of--notice, defective--sale, validity of--purchaser, position and rights of--purchaser, whether necessary party to suit--possession, whether can be given on reversal of sale--appeal--finding of fact, when can be disturbed. - .....public sale in liquidation. this must le read with section 10, which provides that as the time of sale the notice previously stuck up in the katchari shall be taken down and the lots be called up successively m the order in which they may be found in that notice. it in plain that section 10 contemplates a self-contained notice which compromises not only a specification of the arrears and a notification that the sale will be held on the 1st jaist if the amount claimed be not paid before that date, but also a statement of the lots proposed to be sold in the order in which the sale will be held. judged by this test, the notice in this ease does not fulfill the requirements of the regulation. the notice does not specify the lots to be sold (except one property which is not the.....
Judgment:

1. This is an appeal by the second defendant in a suit instituted under Section 14, Clause 1 of the Putni Regulation, 1819, for reversal of the putni sale. Putni Mahal Sajnore appertains to Touzi No. 11 of the Burdwan Collectorate and is situate partly within Burdwan district and partly within Birbhum district, in respect of this putni, Rs. 6,928 is annually payable as rent by the plaintiffs to the first defendant, the Maharaja of Burdwan. Default was made in payment of rent for the Bengali year 1321, with the result that proceedings under the Regulation were instituted by the Zemindar. The putni was sold by the Collector of Birbhum on the 15th May 1915, corresponding to 1st Jaist 1322. The appellant offered the highest bid and became the purchaser for Rs. 14,500. On the 8th May 1916, the plaintiff instituted the present suit for reversal of the sale. The Subordinate Judge has found, first, that the arrears due had been paid by the plaintiffs to the officer of the Zemindar at Burdwan on the day previous to the sale and that no arrears were due when the sale was held at Birbhum on the 15th May 1915 : secondly, that the notice required to be stuck up at a conspicuous part of the Collector's katchnri was defective and misleading and was not served in accordance with Section 8, Clause 2, and Section 10, paragraph 1, of 47 the Regulation : thirdly, that the evidence of service of the notice at the katchari in the Moffasilis most unsatisfactory. On these grounds, the Subordinate Judge has decreed the suit, set aside the sale and directed that possession be restored to the plaintiffs, the purchase money to be refunded to the purchaser. He has also held that, in the circumstances disclosed, each party should bear his own costs. The purchaser defendant has appealed to this Court, and on his behalf the conclusion of the Subordinate Judge upon each of the three points mentioned has been rigorously attacked.

2. The first point involves the questions of the time of the payment and of its legal effect. It is not disputed that a sum of Rs. 4,158-10-6 was paid by the manager of the plaintiffs to the officer of the Zemindar defendant and was accepted by the latter as the full amount due; but the controversy has entered round the question of the precise time when the payment was made. The Subordinate Judge has held, on the evidence of the Deputy Manager of the Burdwan Raj and on the testimony of other witnesses, that the payment was made between 8 p. m. and 10 p, m. on the evening of the day antecedent to the sale. Mr. Das has criticized this evidence severely and has invited us to hold that the money was paid after midnight, probably a short while before morning. The payment must have been made before 6 A. m., as a telegram was sent at that hour to the Am-Muktear of the Zemindar at Sari, asking him to strike off the proceedings. Mr. Das has pressed his view on the Court in order to lay the foundation for an argument that a payment made after midnight is equivalent to a payment on the following day, that is, the day of sale, and that a payment so made is inoperative to stop the sale. It is plain, however, that when the Regulation mentions Bengali months and dates throughout, the Legislature must have intended that a day should be reckoned in the manner prevalent in Bengal, that is, from sunrise to sunrise. In this view, it becomes immaterial to decide, whether the money was paid between 8 p. m. and 10 p. m. in the evening or later on in the night. There are slight discrepancies in the evidence on this point: but Dr. Dwarkanath Mitterhas rightly contended that in a matter of this description, where the issue involves a simple question of fact to be decided ohiefly, if not solely, on oral evidence, a Court of Appeal should be slow to set aside the finding of the trial Judge who had the witnesses before him: Bombay Cotton Manufacturing Go. v. Motilal 29 Ind. Cas. 229 : 42 I. A. 110 : 39 B. 386: 28 M.L.J. 593 : 17 M.L.T. 40' : (1915) M.W.N. 788 : 2 L.W. 521 : 17 Bom.L.R. 455 : 21 C.L.J. 528 : 190 W N. 617(P.0,); Dominion Trust Co. v. New York life Insurance Co. (1919) 1 App. Cas. 254 : 88 L.J.P. C. 30.

3. On the whole, we are not satisfied that the time of payment has been erroneously asoer-tained by the Subordinate Judge. The question next arises what was the legal effect of the payment actually made. Mr. Das has contended that there was in reality no unqualified payment, but only a oouditional deposit. This argument is rested on the following endorsement made in the challan at the time of payment:

The amount being untimely paid, extra telegram is sent. The Raj Sarkar is not responsible, if the telegram does not reach the Raj katchari at Suri in time, or reaches it at a late hour, with the consequence that the lot is sold in auotion sale; the amount will be received back without any objection and without interest.

4. We do not think the sum paid and accepted, though with a qualification, can be deemed a deposit. The intention of both parties wf.s that the sum should be taken as an immediate payment : it was on such assumption alone that the Burdwan Raj could have directed the Am-Muktear at Suri to strike off the proceedings. No doubt, there was an arrangement that if a sale took place, in either of the contingencies mentioned, the sum would be returned : but that does not indicate that the acceptance of the money was postponed to await the evtnt. It is nofcneoessary for us to determine, what would have been the exaot position of the. putnidar, if either of the two contingencies contemplated had happened : whether in that event he would have been entitled to sue for reversal of the sale on the ground that the arrears had been paid, need not to be discussed. The fact is that neither of the oontingenoies contemplated happened : on the other hand, events took a turn which neither party had anticipated. The telegram reached the Raj katchari at Suri in due time, but through a mistake the Code letter attaohed to the name of the sender was omitted. The consequence was that the Am-Muktear, when he received the telegram, hesitated to take Action thereon, He telegraphed to Bnrdwan to make sure of the genuineness of the instructions. The Collector granted a short adjournment but the message in reply was not received within the time allowed. In these oiroumBtanoes, we must hold that the sale took place after a valid payment had been made to the officer of the Zemindar. The sale held under such eiroumstanoes must be deemed to be a pale without jurisdiction. This view has .been repeatedly held with regard to sale for arrears of revenue: Byjnaih v. Seetul Per shad 10 W.R. 66 (F.B.) : 2 B.L.R. 1; Harkhoo Singh v. Bunshidhur Singh 25 C. 876 : 2 C.W.N. 360; Balkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513 : 7 Sar. P.C.J. 363; Mahomed Jan v. Qanga Bishun Singh 10 Ind. Cas. 272 : 38 C. 537 : 13 C.L.J. 525 : 15 C.W.N. 443 : 8 A.L.J. 480 : 13 Bom.L.R. 413 : 21 M.L.J. 1148: 9 M.L.T. 446 : (1911) 2 M.W.N. 277 : 38 I. A.80 (P.C.); Haji Buksh Ilahi v. Durlav Chandra 16 Ind. Cas. 821 : 39 C. 981 : 16 C.L.J. 620 : 2323 M.L.J. 206 : 16 C.W.N. 842 : 12 M.L.T. 385 : (1912, M.W.N. 1005 : :4 Bom.L.R. 1063 : 10 A.L.J. 452 : 39 I. A. 177 (P.C.). The principle has been applied to the case of a sale under the Public Demands Recovery Act: Janakdhari Lai v. Mohant Gossain Lai 1 Ind. Cas. 871 : 37 C. 107 : 11 C.L.J. 254 : 13 C.W.N. 710 and has been regarded as equally applicable to sales under the Putni Regulation: Shuroop Chunder v. Pertab Ghunder Singh 7 W.R. 218; Ran.sona v. Nabakumar Sinha 10 Ind. Cas. 90 : 13 C.h.J. 404 : 16 C.W.N 805. This position is clear from Section 14, Clause (1), which contemplates a sale, only if the balance claimed by the Zemindar on account of the rent of the putni remains unpaid upon the day fixed for the sale of the tenure. The second paragraph of the clause- clearly contemplates that the fact that there was no balance due, may be urged as a ground in support of a suit for reversal of the sale. Weneed not accordingly divsousp, whether a sale can be stopped by the putnidar by offer of the money to the Zemindar at the moment of sale. But it is dear that he cannot Htop the sale at that stage by a deposit in the Collectorate. This was ruled by the majority in Kristo M'.hun v. iiftabooddeen 15 W.R. 560 which is an authority for the proposition that payment to stop the sale may be made into Court, either by a subordinate Talukdar under Section 13 or by a putnidar who has applied for a summary investigation under Section 14, Clause (2).

5. The second point raises the question, whether the notice to be stuck up at a conspicuous part of the Collector's hatchari was served in accordance with the Regulation. Section 8, Clause (2) requires the Zamindar to present a petition to the Collector containing a specification of the balances due to him on account of the expired year from the putnidar. This petition must be stuck up in some conspicuous part of the Collector's katchari with a notice that if the amount : claimed be not paid before the 1st Jaist following, the tenure of the defaulter will on that day be sold by public sale in liquidation. This must le read with Section 10, which provides that as the time of sale the notice previously stuck up in the katchari shall be taken down and the lots be called up successively m the order in which they may be found in that notice. It in plain that Section 10 contemplates a self-contained notice which compromises not only a specification of the arrears and a notification that the sale will be held on the 1st Jaist if the amount claimed be not paid before that date, but also a statement of the lots proposed to be sold in the order in which the sale will be held. Judged by this test, the notice in this ease does not fulfill the requirements of the Regulation. The notice does not specify the lots to be sold (except one property which is not the subject-matter of this suit), and, it necessarily follows, does not set out the order in which the sale was to take place. The notice was framed on the assumption that the requisite information might be obtained from the petition which also is required to be stuck up under Section 8, Clause (2). The view we take as to the content of a notice under Section 8 is in conformity with that adopted by this Court in the cases of Rajnarain v. Anant Lal 19 C.703; Bejoy Chand v. Atulya Charan Bose 32 C. 953 : 3 C.L.J. 46 and Hariharnath Das v. Rajanikanta 15 Ind. Cas. 537 We have examined the records of the last two cases and have found that the notices which were then pronounced defective were of the same form as the notice in this case. It is difficult to understand why notwithstanding those decisions, the same defective form should continue to be used, leading inevitably to expensive litigation and cancellation of sales. It may further be pointed out that the importance of strict conformity with the requirements of the Regulation in respect of the notice mentioned in Sections 8 and 10 has been emphasised on more than one occasion by this Court as also by the Judicial Committee: Maharani of Burdwan v. Krishna Kamini Dasi 14 C. 365 : 14 I.A. 30 : 4 Sar. P.C.J. 772; Ahsanulla v. Haricham 20 C. 86 : 19 I.A. 191 : 6 Sar. P.C.J. 252 affirming the decision of the High Court in Ahsanulla v. Hurri Churn 17 C. 474; Bajnarain v. Anant Lal 19 C.703; Hurro Doyal Roy v. Mahomed Gazi 19 C. 699; Maharaja of Burdwan v. Tarasundari Debi 9 C. 619 : 10 I.A. 19 : 13 C.L.R. 34 : 4 Sar. P.C.J. 414. We are of opinion that the notice under Section 8 was defective and this by itself is a fatal objection to the validity of the sale.

6. The third point raises the question of the service of the notice required to be served by Section 8 at the katchari of the defaulter. The Subordinate Judge has held that the alleged service of the notice in the Moffusil is not satisfactorily made out. His conclusion is that the notice was duly served at the Sudder katchari of the Zemindar but not duly served at the katchari of the Collector or in the Moffassil katchari of the putnidar. We have examined the evidence and have arrived at the conclusion that the proof of service in the Moffussil is by no means above suspicion : there is considerable doubt as to the genuineness of the signatures on the receipt and some of the witnesses do not fall within the category of substantial persons: Ram Sebuh v. Monmohini Dossee 2 I.A.71 : 23 W.R. 113 : 14 B.L.R. 394 : 3 Sar. P.C.J. 432 : 3 Suth. P.C.J. 72.

7. The conclusion follows that the sale must be set aside, not only because no arrears remained unpaid upon the day fixed for the sale, but also because two of the notices prescribed by the Regulation have not been duly served. Mr. Das has argued that the Court is bound to take into account the fact that the purchaser at the sale is a stranger to the proceedings and he has pressed us to take the view that in such circumstances the sale should be maintained and damages paid to the putnidar by the Zamindar. This contention cannot possibly succeed in view of the provisions of the Regulation: Mobaruck Ali v. Ameer Ali 21 W.R. 252. A sale under the Putni Regulation stands on an entirely different basis from a sale for arrears of revenue. Section 14 does not restrict the right of suit to narrow and specified grounds. The validity of the sale may be successfully challenged on proof that the conditions prescribed by the Regulation have not been fulfilled, and the numerous decisions in the reports show that the Court has exacted conformity, on the part of the Zemindar, with the statutory requirements. The purchaser, though a stranger, is only entitled to be indemnified against all loss at the charge of the Zemindar or other parson at whose instance the sale may have been made; such loss would ordinarily be measured by costs of litigation and interest on the purchase-money; Mobaruck Ali v. Ameer Ali 21 W. 11. 252; Bykunt Nath Singh v. Mahtab Chand 17 W.R. 447 : 9 B.L.R. 87; Bejoy Chand v. Amrita Lal 27 C. 308.

8. Mr. Das has finally argued that the suit was not properly constituted, inasmuch as the members of the joint family of which the purchaser was a member had not been added as parties. There is no force in this contention. Section 14 contemplates that the purchaser is to be made a party. If the purchaser has purchased on behalf of another or on behalf of himself and Ors., he must be deemed to represent all such persons, and as it was he who took delivery of possession under Section 15, it is immaterial that the plaintiff asks not merely for reversal of the sale but also for restoration of possession on such reversal.

9. The decree of the Subordinate Judge must consequently be confirmed, subject, however, to variation in two respects. The purchaser defendant will obtain from the Zemindar defendant (a) interest on the purchase money Rs. 14,500 at the rate of 6 per cent. per annum from the date of the payment (23rd May 1915) to the date of reversal of the sale, that is, the date of the judgment of the lower Court (4th October 1917), and (6) costs in the lower Court; these sums will carry interest from 4th October 1917 to date of realisation; subject to these modifications, the appeal will stand dismissed. The appellant will pay to the plaintiffs-respondents the costs of this appeal and will recover from the Zamindar respondent half the costs of the appeal.


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