Skip to content


Kalipada Roy and anr. Vs. Mukunda Lal Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal679
AppellantKalipada Roy and anr.
RespondentMukunda Lal Roy and anr.
Cases ReferredIn Mt. Raj Koer v. Ganga Singh
Excerpt:
- .....in 1919. in 1920 sudhanya was recorded as the sole proprietor. certificate was issued by the certificate officer on 16th september 1919 under the public demands recovery act in respect of cesses due from the estate. in the certificate the certificate debtor's name was mentioned as joylakshmi debya manager on behalf of (ka) arun chandra roy and (kha) sudhanya chandra roy. this certificate was duly filed and the property was ordered to be sold. in 1920 it was brought to the notice of the certificate officer that sudhanya had become the sole proprietor and he ordered the sale proclamation to be issued in his name only. the property was subsequently sold for rs. 50 and purchased by one krishna kishore who conveyed it later to defendant 1. this suit was instituted in april 1925 for.....
Judgment:

1. The suit out of which this appeal has arisen was for recovery of possession of the plaintiff's moiety share of touzi No. 12713 of the Dacca Collectorate and also for mesne profits. The plaintiffs are the minor sons of one Sudhanya Chandra Roy deceased. It appears from examination of the papers of the Collectorate produced in this case that the touzi originally belonged to two brothers Arun Chandra Roy and Sudhanya Chandra Roy who owned eight annas share each. This was the state of things in 1919. In 1920 Sudhanya was recorded as the sole proprietor. Certificate was issued by the Certificate Officer on 16th September 1919 under the Public Demands Recovery Act in respect of cesses due from the estate. In the certificate the certificate debtor's name was mentioned as Joylakshmi Debya manager on behalf of (ka) Arun Chandra Roy and (kha) Sudhanya Chandra Roy. This certificate was duly filed and the property was ordered to be sold. In 1920 it was brought to the notice of the Certificate Officer that Sudhanya had become the sole proprietor and he ordered the sale proclamation to be issued in his name only. The property was subsequently sold for Rs. 50 and purchased by one Krishna Kishore who conveyed it later to defendant 1. This suit was instituted in April 1925 for declaration that the sale under the Public Demands Recovery Act did not pass any title to the purchaser and for recovery of possession of the property from defendant 1. Both the Courts below have found against the plaintiffs and dismissed their suit.

2. The only question raised before us is that the certificate having been issued in the name of a wrong person the right, title and interest of the owner did not pass by the sale and the purchaser accordingly obtained no title to the property. This question was not raised in this form in the Courts below. There is no reference to it in the judgment of the trial Court; but in the lower appellate Court it was urged on the ground that at the time the certificate was issued Sudhanya Chandra Roy was major. The question, however, is of some importance and does not depend upon any extraneous evidence but has to be decided on the documents filed in this case. We have therefore to consider as to whether the certificate was properly made in this case and was duly filed. Under Section 4, Public Demands Recovery Act (3 of 1913 B.C), when the Certificate Officer is satisfied that any public demands payable to the Collector is due, he may sign a certificate in the prescribed form being form No. 1 in the Appendix to the Act. Col. 3 of the form requires that the name and address of the certificate-debtor should be given. Under Section 6 the Certificate Officer has to file the certificate in the prescribed form and shall cause the certificate to be filed in his office. On the filing of the certificate further execution will issue under Section 7 and notice under that section shall be served on the ''certificate debtor in the prescribed form. The notice should specify that a certain sum has been found to be due from the certificate' debtor on account of some demand from him under Section 4 or 5 of the Act. The service of the certificate upon the certificate debtor has the effect under Section 8 of an attachment by civil Court and any transfer thereafter of the property or any of his immovable property is to be deemed bad in law. Section 9 is an important section and has to be considered in this connexion. If a certificate is duly made and filed by service of notice effected on the certificate debtor, he may within 30 days from the service of notice under Section 7 or from the date of execution of any process for enforcing the certificate present to the Collector or the Certificate Officer a petition denying his liability in whole or in part. This section gives a valuable right to the certificate debtor and therefore it is necessary that the certificate should be made against and served on the proper person from whom the amount of the debt is due. Part 3 of the Act deals with execution of certificates. Section 20 declares that if a property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate debtor against whom the certificate has been issued, at the time of the sale. The following sections deal with the steps to be taken by the certificate debtor for having the sale set aside. Now under Section 20 what the purchaser gets in a sale under the Pub-lie Demands Recovery Act is the right, title and interest of the certificate debtor. It is therefore necessary in order to pass any title to the purchaser to make the certificate against the proper certificate debtor.

3. Now to come to the facts of the present case. As we have said, the certificate was issued against the mother of the minors in which she was described as the manager on behalf of her minor sons. The objection has been thus answered by the learned District Judge in appeal:

Arun and Sudhanya never registered their names in the Collectorate and allowed their mother to represent them in the Collectorate. Therefore the certificate made wag legal and binding upon Sudhanya the father of the plaintiffs.

4. The accuracy of this statement was challenged before us and we had therefore to send for the original D Register of the Collectorate and the original certificate issued. We have now looked in to these papers and we find that in 1919 in the Collectorate Register the names of Arun and Sudhanya stood in respect of 16 annas of this touzi. There is no mention in the register of the name of the mother Joylakshmi Debi as representing the minors. There is nothing on the record to show at to how she came to be described, as the manager of the minors. The District Judge therefore is not right in his observation that these minors allowed their mother to represent them in the Collectorate and that therefore the certificate was binding upon them. A certificate under the Public Demands Recovery Act is considered as equivalent to a decree of a civil Court. A decree in the form in which the .certificate was issued if made by a civil Court must undoubtedly be held not binding on the minors whose interest is sought to be affected by it.

5. In the case of minors there is a provision in the Public Demands Recovery Act which has been held to be a complete Code in itself except on points to which the Civil Procedure Code has been made applicable Section 41 of the Act lays down that when the Certificate Officer is satisfied that the certificate debtor is a -minor or of unsaund mind he shall in any proceeding under the Act, permit him to be represented by any suitable person. The certificate does not show that Arun and Sudhanya were minors at the time when it was issued and if minors that their mother was allowed to represent them in the proceeding. She has been described as the manager. Under Section 4 of the Act a manager is not a person from whom a public demand is due. If they were treated as minors, there is no order by the Certificate Officer 'permitting the mother to represent them in the certificate proceeding. In Mt. Raj Koer v. Ganga Singh [1909] 10 C.L.J. 201, it was held that the effect of a sale under the Public Demands Recovery Act being to pass to the purchaser merely the right, title and interest of the person named as judgment-debtor in the certificate, the purchaser acquires no right if the person appears to have no interest in the property at the date of the sale. In that case the registered debtor had lost his interest before the sale by the Collector and it was held that the purchaser did not get any title under it.

6. Reference has been made to Sections 36 and 37 of the Act. Section 36 prescribes the period of one year within which a suit has to be brought if the sale is sought to be set aside on the ground that no notice under Section 7 was served and that the plaintiff has sustained substantial injury by reason of the irregularity. The present suit is not of that character and does not come within the purview of the section. Section 37 says that every question arising between the certificate holder and the certificate debtor shall be determined, not by suit but by order of the Certificate Officer excepting that a suit may be brought in a civil Court on the ground of fraud. This section presupposes the existence of a valid certificate for it is the existence of a valid certificate against the proper person that gives jurisdiction to the Certificate Officer to sell the property of that person. It is well settled that when there are no arrears the Certificate Officer has no jurisdiction to issue certificate and to sell any property under it on the ground that the Act comes into operation on the existence of a public demand for the recovery of which action has to be taken. On the same principle the Certificate Officer is entitled to take action under the Act when there are arrears but he has no jurisdiction to sell the property of a person unless he has made and filed a proper certificate charging that person with liability.

7. As regards the merits of the case, it has been found by the learned District Judge that there is no evidence of service of notice under Section 7 and that the value fetched at the sale was certainly very low. But the learned Judge does not give effect to these findings on the ground that there is nothing to show that the inadequacy of price was due to non-service of notice under Section 7 and that the suit was not brought within one year from the date of sale under Section 36 of the Act.

8. Giving our anxious consideration to the facts of this case we have come to the conclusion that the certificate as made was not a proper certificate to charge the plaintiffs' predecessor with liability and that the sale under it did not pass any title.

9. The result is that this appeal succeeds, the decree of the Court below is set aside and the plaintiffs' suit decreed with costs in all the Courts against defendant 1. The case is remanded to the trial Court for ascertainment of mesne profits.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //