MAHAMMAD MEHDI HASSAN KHAN Vs. SHEOSHANKAR PERSHAD SINGH

JUDGEMENT

(1.) This is a reference under Section 98, Sub-section (2) of the Civil Procedure Code of 1908. The reference is not strictly in form, because the learned Judges have omitted to state specifically the point of law upon which they differed. The difference between Section 575 of the Code of 1882 and Section 98 of the Code of 1908 appears to have been overlooked. Under the former Code, it was the appeal that was referred to a third Judge when the Judges bearing the appeal differed in opinion on a point of law, and on such reference the whole appeal was open for argument and not merely the point of law on which the Judges had differed in opinion. Under the Code of 1908, the proper procedure is to state the point of law upon which the Judges differ; the appeal is then to be heard upon that point only, and what is to be decided is not the appeal but the point of law only. In the case before me, this procedure has not been followed; but the parties are agreed that there is only one point of of law involved in the appeal, upon which the learned Judges who heard the appeal in the first instance have differed, as is manifest from their recorded opinions. That point may be formulated as follows:

(2.) Is a proprietor who is not a recorded sharer of a joint estate held in joint tenancy within the meaning of Section 10 of Act XI of 1859 nor a recorded sharer whose share consists of a specific portion of the lands of the estate within the meaning of Section 11, but is recorded as proprietor of an undivided interest held in common tenancy of a specific portion of the lands of the estate, but not extending over the whole estate within the meaning of Section 70 of the Bengal Land Registration Act, 1876, entitled to claim the benefit of the exception made in Section 53 of Act XI of 1859 in favour of sharers with whom the Collector has under Section 10 or Section 11 of the Act opened separate accounts?

(3.) My learned brother Brett is of opinion that this question ought to be answered in the affirmative. My learned brother Vincent on the other hand is of opinion that the question ought to be answered in the negative. To determine which of these two conflicting views should prevail, the provisions of the Revenue Sale Law (Act XI of 1859) and of the Land Registration Act [Act VII of (1876) B.C.] must be examined.