SRIMATI TARA SOONDARI DEBIA Vs. MAHARAJAH OF BURDWAN

JUDGEMENT

(1.) THIS case comes before us ex parte. The suit was to set aside a sale of a putni talook which took place by auction for non-payment of rent, the allegation of the Appellant, who was the Plaintiff in the suit, being that the sale was illegal in consequence of non-observance of Regulation VIII of 1819. By that regulation it is provided with reference to cases where sales are to take place in certain districts and under certain circumstances for non-payment of rent, that "on the first day of Bysakh of the following year from that of which the rent is due the zemindar shall present a petition to the civil court of the district, and a similar one to the collector, containing a specification of any balances that may be due to him on account of the expired year from all or any talookdars or other holders of an interest of the nature described in the preceding clause of this section." Having presented this petition both to the civil court and to the collector, "the same shall then be stuck up in some conspicuous part of the kucheree, with a notice that, if the amounts claimed be not paid before the 1st of Jyte following, the tenures of the defaulters will on that day be sold by public sale in liquidation." Then it provides that "A similar notice shall be stuck up at the sudder kucheree of the zemindar himself, and a copy or extract of such part of the notice as may apply to the individual case shall be by him sent to be similarly published at the kucheree, or at the principal town or village upon the land of the defaulter." It is admitted that there was a compliance with the two earlier provisions, but the question arises whether a copy or extract of the notice applying to the individual case was sent by the zemindar to be published "at the kucheree, or at the principal town or village upon the land of the defaulter." The regulation goes on : -

(2.) THE issue in this case is as to whether the provisions of Regulation VIII of 1819 have been complied with. The case before us differs from that before the Chief Justice of Bengal, and equally from that case which was before this tribunal, in this, that the fact of service here is matter of controversy. We should be obliged to assume, in order to arrive at a conclusion one way or the other, either that there was a conspiracy to cheat and deceive upon the part of the Plaintiff Charoo and the two chowkidars who are represented to have assisted in the fraud, or that there was a conspiracy on the part of the peon sent to effect this publication, who, having, it is said, neglected his duty, conspired afterwards with a confederate to make a false statement and forge a receipt.

(3.) THEIR Lordships will humbly advise Her Majesty to affirm the decision of the High Court, and upon this ground : The doubt or difficulty in the case is one that would not have existed save by the neglect of those representing the Maharajah. There is no evidence save the statement of the peon Khetu that the notice was ever entrusted to him; but supposing it was entrusted to him I for publication, his duty, and that of the officers of the Maharajah, would have been clear and plain. Ho should have ascertained when he went to make the service that the person whom he represents to be Charoo, to whom he says ho delivered the notice, was the defaulter, or the agent of the defaulter. He should then have obtained his receipt, a receipt proper in form. If he could not obtain it he should have followed the course prescribed by the Regulation, and should at once have returned the documents to the proper officer of the Maharajah. It would then have been the duty of that officer to examine the receipt and see that it was in all respects complete and regular as part of the foundation of the title afterwards to be given by sale. Their Lordships have before them a copy of the supposed receipt, which appears to be enveloped in mystery from the time it was alleged to have been signed. The peon gives no history of it. What did he do with it? To whom did he give it? Where has it been? All that is left in obscurity, and no confirmatory proof is produced from amongst the servants of the Maharajah that the peon, having effected what he alleged to be service, brought in this receipt with him, and filed it in the collectorate or with the proper officer of the district. What is the document itself when we come to look at it? The professed signatures are at the top. The first is that of Brojo Mohun Banerjee. That purports to be the name, not quite the correct name, of the registered proprietor of the talook, who has been dead many years, and if this had been brought to and examined by the servants of the Maharajah they must have seen that the dead man could not have signed it; there is no doubt that they knew that this registered proprietor was not alive. The next signature is that of Bedoznath Banerjee, who is put down as the karpurdaz, meaning the kar-purdaz of the dead man, Brojo Mohun Banerjee. This turns out to be a non-existing individual; there is no such person. Then we come to the attesting witnesses at the foot, and they are Goburdhun Chowkidar and Gopal Chowkidar, residents of Salmula. The inference from that would be that they were the chowkidars of Salmula. If there are such persons in existence, there are no such chowkidars at Salmula, and neither of the chowkidars of Salmula have been produced on either one side or the other. This document or receipt so produced by the peon is by no means a compliance with the provision of Regulation VIII Their Lordships think that the absence of that care and attention which ought to have been shewn with reference to this document, and the absence of any contemporaneous inquiry whether there had or had not been a publication of this notice, as required by the Regulation, have created the very difficulty which the Regulation was intended to prevent; and as the Regulation makes the zemindar exclusively answerable for the observance of its provisions, their Lordships are of opinion that the issue as to the Regulation ought to be found in favour of the Respondents; and will therefore humbly report to Her Majesty, as their opinion, that the decree of the High Court of Judicature ought to be affirmed and this appeal dismissed.