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Joggeswar Mahata and ors. Vs. Jhapal Santal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in82Ind.Cas.848
AppellantJoggeswar Mahata and ors.
RespondentJhapal Santal and ors.
Cases ReferredMalkarjun v. Narhari
Excerpt:
bengal tenancy (amendment) act (ii of 1918), section 49k - sale, of tenure, of aboriginal, whether nullity--waiver of provisions of act--application to set aside, sale--limitation--interpretation of statutes--statute for benefit of particular class--public policy. - .....a sale held in contravention of the provisions of the bengal act ii of 1918 is merely an irregular sale or a nullity.2. the appellant obtained a decree for money against the respondent who is an aboriginal residing in the district of midnapore, to which the act applies, and in execution of the decrees put up his tenure to sale and purchased it himself on the 20th august 1920. an application was made to set aside the sale on the 13th january 1922. it was far beyond the period prescribed by article 166 of the limitation act or even article 12 of the limitation act. the courts below, having come to the conclusion that the sale was a nullity, overruled the objection of limitation and set aside the sale.3. the decree-holders have appealed to this court and it is contended that the sale was.....
Judgment:

1. The question involved in this appeal is whether a sale held in contravention of the provisions of the Bengal Act II of 1918 is merely an irregular sale or a nullity.

2. The appellant obtained a decree for money against the respondent who is an aboriginal residing in the District of Midnapore, to which the Act applies, and in execution of the decrees put up his tenure to sale and purchased it himself on the 20th August 1920. An application was made to set aside the sale on the 13th January 1922. It was far beyond the period prescribed by Article 166 of the Limitation Act or even Article 12 of the Limitation Act. The Courts below, having come to the conclusion that the sale was a nullity, overruled the objection of limitation and set aside the sale.

3. The decree-holders have appealed to this Court and it is contended that the sale was not a nullity and that the provisions of the Act having been made for the benefit of a particular class of persons and not for the general public, the respondents could waive the irregularity of the sale and the sale, therefore, was not altogether invalid. We have been referred to certain observations made by Mookerjee, J., in the case of Ashutosh Sikdar v. Behari Lal Kirtania 35 C. 61 at p. 74;. 11 C.W.N. 1011 : 6 C.L.J. 320 (F.B.). The learned Judge observes--'When the object of the Statute has been determined, if the statutory provision is not based on grounds of public policy, and is intended only for the benefit of a particular person or class of persons the conditions prescribed by the Statute are not considered as indispensable and may be waived, because every one has a right to waive, and to agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, and which may be dispensed with without infringement of any public right or policy.' The mere fact that the statutory provisions are intended for the benefit of a class of persons does not necessarily show that it is not based on grounds of public policy. As was observed by Lord Campbell, L.C., in Liverpool Borough Bank v. Turner (1860) 2 De. G.F. & J. 502 at p. 508 : 129 R.R. 172 at p. 175 : 30 L.J. Ch. 379 : 7 Jur. (N.S.) 150 : 3 L.T. 494 : 9 W.R. 292 : 45 E.R. 715, that 'No universal rule can be laid down for the construction of Statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed' and in the case of Rajani Kanta Ghose v. Sheikh Rahaman Gazi 82 Ind. Cas. 507 : 27 C.W.N. 765 at p. 768 : 37 C.L.J. 447; (1924) A.I.R. (C) 408, Mr. Justice Mookerjee observes: 'The only rule that may be adopted is, that when the provisions of a Statute have been contravened, if a question arises as to how far the proceedings are affected by such contravention, the matter must be determined with regard to the nature, scope and object of the particular provision which has been violated. No hard and fast line can be drawn between a nullity and an irregularity.' We, therefore, have to consider the object of the Act. The preamble states--'Whereas it is expedient to supplement and amend the Bengal Tenancy Act, 1885.' Section 49B of the Act lays down, 'No transfer by an aboriginal tenure-holder, raiyat or under-raiyat of his right in his tenure or holding, or in any portion thereof, by private sale, gift, Will, mortgage, lease or any contract or agreement, shall be valid to any extent except as provided in this Chapter.' The voluntary alienation, therefore, is absolutely prohibited except as provided for in that Chapter, and Section 49 K lays down 'Notwithstanding anything in this Act, no decree or order shall be passed by any Court for the sale of the right of an aboriginal tenure-holder, raiyat or under-raiyat in his tenure or holding, or in any portion thereof, nor shall any such right be sold in execution of any decree or order.' There are certain provisos to which we need not refer. Section 49K, therefore, clearly lays down that there shall be no decree for sale of a tenure of an aboriginal and no sale shall be held in execution of a decree except a rent-decree and certain other cases mentioned in the proviso. It is not reasonable to hold that the Legislature having enacted that there shall be no voluntary alienation by an aboriginal to any extent except as provided in this Chapter should allow an involuntary sale in the same Chapter. The enactment is for the protection of the aboriginal against any indiscreet transaction. That being the object of the enactment, we think it was not open to him to waive the benefit of the provisions. We do not think that the mere fact that the enactment was made for the benefit of a class of persons, viz., the aboriginals in certain district, shows that that it was not on the ground of public policy. We are, therefore, of opinion that the sale was a nullity and, if the sale is altogether void, the question of limitation does not arise. That question arises where the sale is a valid sale until it is set aside, as it was in the case of Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom: L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.). Having regard to the view taken by us that the sale in the present case was not an irregular sale but a void one, we are of opinion that the application is not barred by limitation.

4. The appeal is accordingly dismissed with costs.


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