Sir Lancelot Sanderson:
This is an appeal by the plaintiff in the suit from a judgment and decree of the High Court of Judicature at Patna, dated 19th February 1925, which reversed a decree of the Subordinate Judge of Darbhanga dated 25th June 1921. The delay in the disposal of this appeal is accounted for by the fact that the appeal was dismissed for want of prosecution on 4th November 1926, and it was not until 22nd March 1928, that by an order of His Majesty in Council the appeal was restored upon certain conditions therein specified. The appellant's case was lodged in April 1928 ; the respondents however did not file a case and were not represented at the hearing of this appeal.
The suit was brought by the plaintiff, a pardanashin lady, to set aside the sale of a certain share of Mauza Ladugaon, which took place on 6th June 1919, by reason of alleged arrears of revenue, for recovery of possession of the said share and for mesne profits.
It was alleged that the plaintiff's share in the said village was five annas ten gandas, and that defendants 2 and 3, Bedanand Thakur and Lachhmi Kant Thakur, together with other persons, were the owners of the other share in the said village. It was further alleged that the above-mentioned two defendants had purchased the plaintiff's share in the said village in the name of their relation, defendant 1, Surajnarayan Chaudhuri, at a grossly inadequate price, viz., Rs. 1,350, the real value of the plaintiff's share being at least Rs. 16,000. There were nine issues raised at the trial, but it is necessary to refer to two only for the purpose of disposing of this appeal.
(1) The plaintiff alleged that defendants 2 and 3 had acted fraudulently and in collusion with the plaintiff's patwari and had bribed him to allow the payment of revenue to become in arrear, so as to bring the plaintiff's share to sale. Both the Courts in India held that the plaintiff had failed to prove her case of fraud and collusion, and the learned counsel who appeared for the plaintiff at the hearing of this appeal did not contest the correctness of that finding.
(2) The other issue, to which reference is necessary, was numbered 4 in the trial Court and was as follows :
" Whether the sale was held in absence of arrears of Government revenue as alleged."
The Subordinate Judge found this issue in favour of the plaintiff and directed that the suit be decreed with costs, that the plaintiff should recover possession of the said share in the village on depositing the amount of consideration within one month and that the amount of means profits should be ascertained at a later stage. The defendant, Surajnarayan Chaudhuri, appealed against the above-mentioned decree to the High Court at Patna, making the plaintiff, and defendants 2 and 3 respondents. The learned Judges of the High Court held that there was an arrear of revenue in respect of which the share of the plaintiff was liable to be put up for sale, and that the sale of 6th June 1919, was valid. They therefore allowed the appeal, set aside the decree of the Subordinate Judge and dismissed the plaintiff's suit with costs.
The plaintiff's case in respect of the above-mentioned issue was that her share in the property was sold on account of her alleged default in the payment of the Chait kist, or instalment, that the said kist was payable on 28th March 1919, that by reason of S. 2, Act of 1859, the said kist did not become an arrear of revenue until 1st April 1919, and that the latest date for the payment of such arrear of revenue fixed by the Government in pursuance of S. 3 of the said Act was 7th June 1919. Consequently it was contended that the Collector had no jurisdiction to put up the property for sale on 6th June 1919.
Their Lordships have examined the documents in this case, which include the Land Revenue and Road Cess and process tauzi ledger, and the Land Revenue tauzi roll relating to the estate in question. It appears that, there was a separate account in respect of the plaintiff's share, and the revenue in respect thereof was payable in four instalments, viz., 7th June, 28th September, 12th January and 28th March. The alleged arrear of revenue, in respect of which the plaintiff's share was sold, was Rs. 45-7-3, and in their Lordships' opinion there is no doubt that the above-mentioned sum was due in respect of the March kist and was payable on 28th March 1919. This sum however did not become an arrear until 1st April 1919, because by S. 2, Act 11 of 1859, it is provided that :
" If the whole or a portion of kist or instalment of any month of the era according to which the settlement and kistbundeo of any mehal have been regulated, be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue."
The question then arises, when did the plaintiff's share become liable to be sold for
default in payment of the said arrear of revenue. S. 3 of the said Act provides as follows :
" Upon the promulgation of this Act the Board of Revenue at Calcutta shall determine upon what dates all arrears of revenue and all demands which by the Regulations and Acts in force, are directed to be realized in the same manner as arrears of revenue, shall be paid up in each district under their jurisdiction in default of which payment the estates in arrear in those districts, except as hereinafter provided shall he sold at public auction to the highest bidder. And the said Board shall give notice of the dates so fixed in the official Gazette, and shall direct corresponding publication to be made, as far as regards each district in the language of that district, in the Office of the Collector or other officer duly authorized to hold sales under this Act, in the Courts of Judge, Magistrate (or Joint Magistrate, as the case may be), and Munsifs, and at every thanah station of that district ; and the dates so fixed shall not be changed except by the said Board by advertisement and notification, in the manner above described, to be issued at least three months before the close of the official year preceding that in which the new date is, or dates are to take effect."
Their Lordships' attention was drawn to the notification issued by the Board of Revenue at Calcutta in pursuance of the above-mentioned S. 3, dated 6th August 1910 (published in the Calcutta Gazette of 1910) which it was stated was applicable to the area in question and which runs as follows :
" In pursuance of S. 3, Bengal Revenue Sales Act, 1859 (11 of 1859) and in supersession of all previous orders on the subject, the Board of Revenue notify that the following are the latest dates for the payment of arrears of revenue and of demands which are recoverable as arrears in default of which payment the estates in arrear will, except as provided in the said Act, be sold by public auction to the highest bidder.
(1) In the following areas."
The entries in the said notification material to this case are as follows :
Area. Latest dates for payments.
In districts where the Fasli e r a prevails Estates paying an annual revenue exceeding Rs. 100. 7th June. 28th September. 12th January. 28th March.
The estate in question is in a district where the fasli era prevails and the annual revenue exceeded Rs. 100. Their Lordships are of opinion that the plaintiff's contention was correct. The sum of Rs. 45-7-3 was payable on 28th March 1919. It however was not an arrear until 1st April; the last date, therefore for payment of such arrear under the notification could not be 28th March ; but the last date for payment was 7th June 1919. Under S. 3 of the said Act the plaintiff's share in the estate was not liable to be sold for default of payment of the said arrear of revenue until the expiration of the last day for payment, viz., 7th June 1919. Consequently the sale, which was held on 6th June 1919, was invalid, and must be set aside.
The learned Judges of the High Court held that the last date fixed for payment was 28th March 1919 and consequently that the Collector had jurisdiction to put up the property for sale on 6th June 1919.
They based their decision on the construction of a document ' ex. 3 " which they said was the only evidence which the plaintiff adduced in support of her case. The said document was a notice issued by the Collector under S. 7 of the said Act, which provides for notice to be given to ryots forbidding them to pay to the defaulting proprietor any rent which has fallen due after the day fixed for the last day of payment.
The said notice was as follows :
" No. 3, Proclamation forbidding raiyats to pay rent to defaulters.
" Section 7, Act 11 of 1859.
" Ladugaon, pargana Bachhoor, Police station Madhubani.
" Whereas a sum of Rs. 45-7-3 is due on ac-count of arrears of revene for the period ending 21st chait 1326, corresponding to 28th March 1919 in respect of T. No. 554, having a sadar jama of Rs. 167-8-3, lying within the jurisdiction of this Court, for the realization of the same, 6th June 1919 is hereby fixed as the date of sale by auction. A notification is therefore issued in the name of Mt. Saraswati Bahuria forbidding all the tenants as well as the cosharers of the said mahal to pay to the defaulting proprietor their dues accruing after the last day (fixed) for payment of Government revenue on pain of not being allowed credit in their accounts with the puchaser in respect of the sum so paid.
" This the 14th day of May 1919.
(Signed) " Rai Krishna Bahadur
With respect to the learned Judges, their Lordships, as already intimated, are unable to agree with that decision. In the first place the said notice, "Ex. B" was not the only evidence on which the plaintiff relied, and in the second place in their Lordships' opinion the said notice did not specify 28th March as the last date of payment. 28th March 1919 was mentioned for the purpose of identifying the period in respect of which the revenue was due, viz., the period ending 21st Chait 1326 " corresponding to 28th March 1919." The last date fixed for payment of the Government revenue was not specified in the said notice. For these reasons their Lordships are of opinion that the appeal should be allowed, the decree of the High Court dated 19th February 1925 set aside, and the decree of the Subordinate Judge dated 25th June 1921 restored. The respondents must pay the costs of the plaintiff in the High Court and of this appeal, and their Lordships will humbly advise His Majesty accordingly.