SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KISTNA Vs. PISIPATI SANKARAYYA

JUDGEMENT

(1.) I think it is beyond doubt that what was sold in this case was land of the defaulter within the meaning of Act II of 1864, and the question is why should not the provisions of Section 42 be applied to the sale ?

(2.) The learned Vakil for the 1 respondent with the aid of an ingenious piecing together of dicta to be found in Secretary of State for India V/s. Narayana (1884) I.L.R. 8 M. 130, Narayana Raja V/s. Ramachandra Raja (1902) I.L.R. 26 M. 521, and Ramachandra V/s. Pichaikannu (l884) I.L.R. 7 M.434 presents for our acceptance the conclusion that the sale is not free of incumbrances because the land sold is not by Section 2, made security for the public revenue for which it was sold. His construction of Section 2 is not established by any of the cases, and I am not prepared to decide that it is correct, but assuming its correctness I cannot see how the plain words of Section 42 are to be limited by reference to Section 2. A sale may be free of incumbrances whether or not it is held to enforce a first charge, the liens being all transferred to the proceeds.

(3.) In Ramachandra V/s. Pichaikannu (l884) I.L.R. 7 M.434 the learned Judges no doubt observe that the intention is clear that the purchase is free of prior incumbrances only when the arrear is of public revenue of which the land is the first security by statutory declaration, but there is nothing to suggest that they construed Sec. 2 in the way we are asked to construe it; they were not dealing with that question, and their dictum was intended to support their view that a sale for arrear of revenue due under a different statute is not by virtue of S .42 of Act II of 1864 free of encumbrances. I venture to think that if they are right as to the intention of the legislature we must construe Section 2 as declaring all the land of a landholder to be security for all the land revenue payable by him, for the intention, as expressed in Section 42 is, to my mind, very plain--every sale of land conducted under the Act is to be free of encumbrances.