JADUNANDAN SINGH Vs. SRIMATI SAVITRI DEVI

JUDGEMENT

(1.) This is an appeal by the defendant against the decision of the Additional District Judge of Monghyr reversing the decision of the Subordinate Judge and setting aside a revenue sale under Act XI of 1859. It appears that there are several co-sharers in the estate Nadaura, bearing tauzi No. 364 of the Monghyr Collectorate. Some of the co-sharers had opened separate accounts under Section 11 of the Act and the share left after the opening of these separate accounts was known as the ijmali or the residuary share. The Government revenue payable on account of this ijmali share was Rs. 22. The plaintiff owns 1 anna 10 gandas I kauri and the defendants second party own 11 gandas out, of the total 2 annas 1 ganda 1 kauri share of the estate which was left as the ijmali share. The, revenue sale of this ijmali share was held on the 20 of September, 1927, for arrears of the June instalment of 1927, and it was purchased by the defendant-first-party for a sum of Rs. 120 only. The plaintiff preferred an appeal before the Commissioner against the sale, but this appeal was dismissed on the 18 of November, 1927. The present suit was then instituted on the 4 of June 1928, for setting aside the sale. The allegations contained in the plaint were non service of the notices under Secs.6 and 13 and Section 7, and that the sale was brought about by the defendants second-party who fraudulently made default in payment of their share of the Government revenue and who suppressed the several notices issued by the Collector and who purchased the property themselves in the name of their creature, the defendant-first-party. The relief asked for was that the sale may be set aside on account of the irregularities which had occasioned serious loss to the plaintiff as property worth more than Rs. 3,000 was sold for the grossly inadequate price of Rs. 120, and secondly, that if the sale be not set aside, then the defendant first-party may be directed to execute a re-conveyance in favour of the plaintiff in respect of her share in the estate. The suit was contested by the defendant-first-party alone who denied the allegations of the plaintiff as regards the irregularities as well as the fraud alleged by her in bringing about the sale.

(2.) The learned Subordinate Judge found that there was no irregularity inasmuch as the notices under Secs.6 and 13 and Section 7 were properly served, and no fraud was proved to have been practised in respect there of. He further held that the plaintiff was not entitled to a re-conveyance inasmuch as the defendant- first-party did not make the purchase for the defendants-second-party but was the real purchaser at the sale. He found that the price fetched at the sale was inadequate but having regard to the finding of want of irregularity and fraud he held that mere inadequacy of price was no ground for setting aside the sale. Against the decree of the Subordinate Judge, the plaintiff preferred an appeal before the District Judge. The learned District Judge affirmed the finding of the Subordinate Judge on the two points raised by the plaintiff in her plaint and pressed before the Subordinate Judge. A third point was, however, raised before the District Judge, which had not been raised either in the plaint or in the grounds of appeal before the District Judge and which did not form the subject-matter of any of the issues framed in the suit. The point was that the sale made by the Collector was without jurisdiction and as such, it was liable to be set aside. The learned Officiating District Judge gave effect to this contention of-the plaintiff and set aside the sale. The defendant No. 1, who was the purchaser at the revenue sale, has preferred, this second appeal, and the only contention raised in the appeal was whether the Collector had jurisdiction to sell ijmali share of the estate.

(3.) The question of jurisdiction is raised in, this way. The sale purported to be made for the arrears of the "June kist" of 1927. The learned District Judge finds that there was an arrear in June kist of 1927. The notification issued by the Collector showed the arrears to be Rs. 6-12-6. The District Judge was of opinion that the arrears amounted to only Rs. 3-11-0. The actual amount of arrears is immaterial. The fact found is that there was an arrear in the June kist of 1927. The learned District Judge, however, refers to the provisions of Secs.2 and 3 of the Revenue Sale Law Act (XI of 1859) and says that under Section 2, it did not become an arrear of revenue until the 1 of July, 1927, and under Section 3 of the Act the latest date for payment of such arrears was the 28 of September, 1927, and as the sale was held on the 20 of September, 1927, it was illegal and invalid as the Collector had no jurisdiction to hold the sale before the 28 of; September, 1927, and he relied upon the decision of the Privy Council in Saraswati Bahuria V/s. Surajnarayan Chaudhuri 130 Ind. Cas. 676 : 12 P.L.T. 357 : A.I.R. 1931 P.C. 57 : 35 W.N. 444 : 60 M.L.J. 350 : (1931) M.W.N. 369 : Ind. Rul. (1931) P.C. 84 : 53 C.L.J. 307 : 10 Pat. 496 (P.C.).