1. The suit out of which this appeal arises was brought by the plaintiffs to set aside a putni sale held under Regulation VIII of 1819 The Subordinate Judge allowed the plaintiffs' claim and this appeal is presented by Hariharnath Das, defendant No. 2, who was the auction-purchaser.
2. The facts are shortly as follows: There was a zemindari which consisted of 7-annas share of Mouza Sirsha and chak Belahari. It belonged to one Sham Chand Mundle and one Saroda Sundari Dasi in equal shares. On 28th February 1886, the zemindars granted a putni lease to Dhiru Mundle, the predecessor-in-title of defendants Nos. 3 to 8. Sham Chand sold his moiety of the zemindari, i.e., 3 1/2 annas to Ramkalpo Nayek, father of the plaintiffs, on 1st May 1885. Previous to this, the 3 1/2 annas share of Sarado Sundari had been purchased by Raja Ram Ranjan Chukrabarty, defendant No. 1, at a Court sale in April 1888. On 26th March 1891, Chayen Mundle, defendant No. 3 and son of Dhiru Mundle, executed a kabuliat in favour of defendant No. 1 for the 3 1/2 annas share which had been purchased by the defendant No. 1. On 7th August 1904, two usufructuary mortgages were executed (1) Exhibit 6 by Sheikh Abdu, defendant No. 4, and Hitu Bibi, defendant No. 5 and (2) Exhibit A by Chayen Mundle, defendant No. 3, in favour of the plaintiff, Sailaja Kanta Nayek. Shaikh Abdu and Hitu Bibi mortgaged a 4-anna 15-gunda share of the 7-annas while Chayen Mundle mortgaged a 6-anna 10-gunda share of the 7-annas. The rent of the putni for 1312 B. S having fallen into arrears, the defendant No. 1 brought the putni to sale on 15th May 1906. The defendant No. 2 purchased the putni at that sale and was put into possession. On 2nd May 1907, Chayen and his co-sharers executed a kobala of the putni in favour of the present plaintiffs. That sale was in pursuance of an agreement which was entered into about a month before, on 11th April 1907. In January 1907, defendant No, 9 had become the purchaser of 5-annas 15-gundas out of the share of Chayen under a mortgage-decree. On 13th May 1907, the plaintiffs filed the present suit just within the year allowed by law.
3. A question was raised at the hearing whether the sale to the plaintiffs was for good consideration and bona fide. The finding of the Subordinate Judge on this issue was in the affirmative and the learned Pleader for the appellant does not now question this finding. He raises two points (1) that the. plaintiffs have no right to maintain the suit inasmuch as by their kobala, they purchased a mere right to sue which by Section 6 (c) of the Transfer of Property Act cannot be transferred; and (2) that the formalities required, for the sale were duly carried out and that the sale was binding against the plaintiffs or their vendors.
(1) With regard to the first point, it has been held' more than once by this Court that a putni sale is voidable only and not void by reason of any irregularities in the transaction and, moreover, that it can only be avoided by a suit under the provisions of Section 14. See Suresh Chandra Mukhupadhya v. Akhori Singh 20 C. 746 and Ram Sona Chowdhurani v. Nabakumar Sinha Choudhuri 13 C.L.J. 404 : 10 Ind. Cas. 90 : 16 C.W.N. 805. It might, therefore, be a point of some difficulty as to what the plaintiffs had taken by their purchase, did that purchase stand entirely alone, We are, however, relieved from the difficulty of discussing and deciding that point as we find that one of the plaintiffs at least was interested in this property before the sale took place. Sailaja Kanta Nayek, by virtue of the two mortgages above referred to, was clearly entitled to bring a suit under Section 14 (1) of Regulation VIII of 1819 to reverse the sale. It was argued that these mortgages 'were usufructuary and that no possession under them was given and, that, consequently, the Court must regard them as mere paper transactions not conferring any interest in the property. That we certainly are not prepared to do. There is no question whatever upon the evidence that monies were advanced under both these mortgages. The only reason why possession was not taken by the mortgagees was because Madhu Babu told the tenants not to pay rent to the mortgagees. The plaintiffs, therefore, are entitled to maintain this suit.
4. It was suggested at the hearing that any possible defect in the plaintiffs' title to sue might be remedied by transferring to the category of plaintiffs defendants Nos. 4, 6, 7 and 8 and an application was made to us on the 11th by those defendants to be so transferred. It is not certain that the defect could be remedied in that way. A number of cases were cited on both sides and the question is by no means free from difficulty. In the view that we take of the right of the present plaintiffs, it is unnecessary to decide it, and we accordingly refuse that application.
(2) We now proceed to consider the second question as to whether the requisit fomalities of the sale were complied with. There is no doubt that the petition was duly stuck up in a conspicuous part of the Cutchery. A notice also appears to have been stuck up along with it in the Cutchery while a copy of the notice was stuck up at the zemindar's Sadar Cutchery and another copy published at Mouza Sirsha. The notice, however, which was stuck up at the Collector's Cutchery (Exhibit I), appears to us to be clearly defective. Section 8, Clause (2) requires that there should be stuck up with the petition a notice that if the amount claimed be not paid before the 1st of Jeyt following, the tenure of the defaulters will, on that, day, be sold by public sale in liquidation.' Section 10 provides that, at the time of the sale, the notice previously stuck up in the Cutchery shall be taken down and the lots be called up successively in the order in which they may be found in that notice.' It follows, therefore, that the notice must contain the various lots to be sold with the amounts claimed in respect of them. The notice in the present case relates to lot No. 21, which we find from the petition of the zemindar comprised three tenures: (1) Hadah Belta, (2) Hadah Srirampore and (3) 3-annas 10-gundas share of taluk Sirsha and Belahari. The notice, however, only specified Hadah Belta, etc., appertaining to lot 21 and, to make it the more misleading, the amount due was stated to be Rs. 328-3-6 which was the amount due in respect of Hadah Belta alone. It is obvious, therefore, that any one reading that notice would not be able to conclude from it that two other tenures were to be sold, the arrears of which were Rs. 786 11-3 and Rs. 322-15 3 respectively. It has been repeatedly held that the provisions of this Regulation, which allow of sales in a summary manner, must be strictly complied with, and we think that this defect in the publication of the notice was sufficient to justify the Court in setting aside the sale.
5. We do not think that the other informalities or defects to which the learned Subordinate Judge has referred are made out, that is to say, the alteration of the date on the notice from 14th May to 15th. The date may very well have been written/by the peon as the 14th and corrected by him to the 15th when he wrote it, namely, on the 15th. His evidence, which is entirely uncontradicted, goes to show that he took down the notice on the 15th and not on the 14th as he at first stated. With regard to the fact that the notice was not published at chak Belahari, we think that the Subordinate Judge has taken a wrong view of the words in Section 8 Clause (2): At the principal town or village upon the land of the defaulter' cannot possibly mean at every village. As the notice was duly published at Sirsha which was the principal village on the land of the defaulter in this case, we think that that publication was sufficient.
6. The defect, however, in the notice itself is much more than a formal defect. The notice is entirely misleading and would not convey to any person reading it the essential fact that this particular putni was to be sold on 1st Jeyt. This defect in the notice cannot, we think, be cured by saying that the reader might have referred to the petition. There is nothing upon the record from which we can ascertain the precise contents of the copies or extracts of the notice which were stuck up at the Sadar Cutchery of the zemindar or at Mouza Sirsha.
7. For the reasons above stated, we think that the decision of the learned Subordinate Judge is correct and that this appeal must be dismissed with costs, hearing fee Rs. 150.