MANMATHA NATH MUKHERJEE Vs. ANANGA KUMAR MUKHERJEE

JUDGEMENT

(1.) The subject-matter of these two appeals is a permanently settled estate, touzi No. 2562 on the register of the Collector of 24.pergannas bearing an annual revenue of Rs. 358 odd. It was formerly registered in the Nuddea Collectorate and bore the No. 5S0. The whole estate was let out in patni at an annual rent of Rs. 1250. At the material time Surendranath and Narendra Nath Basu (appellants in First Appeal No. 18 of 1938) were the patnidars. The said estate belonged to three sets of proprietors, namely (1) to the Ghoses, Surendra and Narendra Nath Ghose (2) to Monmotha Nath Mukherjee (appellant in First Appeal No. 170 of 1937) and (3) to a group of Mohamedans, Masuda Khatun Bibi and others. On 17 November 1925 the Ghoses, opened a separate account No. 1 under the provisions of Section 10 of Act 11 of 1859. The revenue allotted to that account was Rs. 105 odd. From 18 November 1925, to 1 August 1934, Monmotha's predecessors, Monmotha and the Mahomedan group continued to be recorded in the residuary to be called hereafter "the bigger residuary", with liability to pay Rs. 252 odd as the annual revenue. On 2 August, 1934, a separate account No. 2, was opened in favour of Monmotha with a revenue of Rs. 184 odd, with effect from the following September kist as notified under Section 3 of Act 11 of 1859. The position on 2nd August 1934 was accordingly as follows: Separate Account No. 1; Recorded Proprietors, Ghoses, revenue Rs. 105 odd per year. Separate account no. 2; Recorded Proprietor, Monmotha, revenue Rs. 184 odd per year. Residuary; Recorded Proprietors, Masuda Khatun Bibi & Ors., revenue Rs. 68 odd per year (to be hereafter called the "Smaller residuary"). The apportioned revenue of the separate accounts and of the residuary, as was the revenue of the entire estate before the opening of the separate accounts, was distributed and made payable in four kists notified by the Board of Revenue under Section 3 of Act 11 of 1859. These kists we will designate as the June, September, January a March, kists, to distinguish them from the kists according to the engagement, i. e. the dowl kabuliats, which were according to the Bengalee year. The kists of the dowl kabuliats will be designated as the Bysack kist, Jait kist etc. The last date for payment of the June, September, January a March, kists were respectively 28 June, 28 September, 12 January and 28 March. As the amounts of revenue payable for the September kist 1934 a January, kist 1935 are only material in these appeals, we give the details thereof.

(2.) Before the opening of separate account No. 2 the revenue payable for the residuary, what we have called the bigger residuary, was as follows. It was the total of the revenue payable for separate account No. 2 and the smaller residuary, for separate account No. 2 was opened from the bigger residuary. Revenue Payable fob the Bigger Residuary

(3.) The proprietors of the smaller residuary (the Mahomedan group) did not pay rupees 22-3- 9 on or before 28 September 1934. The said residuary was accordingly advertised for sale by the Collector under Section 13 of Act 11 of 1859. On the fixed sale-date 9 January 1935, the highest bid for the same did not reach the amount for which it was advertised. The Collector stopped the sale, made the declaration under Section 14 that if the other recorded proprietors of Estate No. 2562 did not pay up the arrears within ten days the entire touzi would be sold at a future date. As none of the other recorded proprietors paid up the arrears due for the residuary, the separate accounts were closed, that is, all the accounts were merged into one account and the whole estate was advertised for sale. As the proprietors of the smaller residuary had not paid the revenue for January kist 1935, the advertised demand for which the entire touzi was put up for sale on 25 March 1935 came up to Rs. 47-9-11. It is not disputed before us that the sum represented the amount of arrears of the entire estate as due on 22 January, 1935. At the sale the respondent Ananga Kumar Mukherjee purchased the entire touzi at Rs. 2000. Appeals to the Commissioner of the Presidency Division by some of the recorded proprietors proved infructuous. The sale was confirmed and a sale certificate was issued to Ananga on 24 September 1935 (ex. Section 2-122).