RITENDRAKANTO LAHIRI CHAUDHURY Vs. DHIRENDRA KANTO LAHIRI CHAUDHURY

JUDGEMENT

(1.) This appeal is by the defendants in a suit for certain declarations relating to the extent of the plaintiff's liability to the cess and the apportionment thereof by the Collector under Section 44, Cess Act, in respect of touzi No. 5254 of the Mymensingh Collectorate. The plaintiff and the defendants 1 and 2 are related as step brothers. The late Dharanikanta Lahiri Chowdhuri was their paternal grandfather and was the owner of the above touzi. Dharani Kanta died on 29 November 1918, and by his will bequeathed all his property to his grandson Dhirendra Kanta Lahiri Chowdhuri. Dhirendra's father Narendra Kanta who was the only son of Dharani Kanta was thus totally disinherited by Dharanikanta. This created a dissension between Dhirendra and his father Narendra and the dispute was ultimately settled amicably by a deed of family arrangement dated 27 October 1919, whereby the estate left by Dharanikanta was taken half and half by Dhirendra and Narendra. Dhirendra and Narendra subsequently came to an amicable partition of the property and by the partition deed dated 11 April 1922, the parties inter alia apportioned amongst themselves (1) the lands of the touzi No. 5254, (2) the revenue payable for it, and (3) the cess then payable in respect thereof. It was further agreed that when cess will be re-assessed after revaluation the parties inter se will be liable to pay it in proportion to the valuation of the lands of the touzi in their respective allotments.

(2.) The touzi No. 5254 comprised moujas and kismats in Parganas Mymensingh and Jafarshahi in the District of Mymensingh and Pargana Jafarshahi in the District of Bogra. The revenue payable for the touzi is Rupees 10,781-11-0 and the cess payable for it at the time of the partition was Rs. 4673-10-0. By, the aforesaid amicable partition the plaintiff Dhirendra Kanta got in his Sahara some of the mouzas of Pargana Mymensingh. The rest of the mouzas of that Pargana and all the mouzas of Pargana Jafarshahi in the Districts of Mymensingh and Bogra fall to the Saham of his father Narendra Kant. At that partition, the revenue was taken at the wrong figure of Rs. 10,815-3-4 and was apportioned between the parties, Rs. 4289-9-0 being made payable by the plaintiff Dhirendra Kanta, and Rupees 6525-10-4 by his father Narendra. The cess then payable was apportioned in proportion to the apportioned re; venue, Rs. 2819-6.0 was made payable by Narendra Kanta and Rs. 1854-4-0 by Dhirendra, the present plaintiff. Re-assessment of the cesa took place in 1930. At the revaluation, the valuation of the Bogra lands was much increased, so that the cess in respect of these lands increased from Rs. 68-10-0 to Rs. 637.15-0. On this re-assessment the cess payable in respect of the entire touzi became Rs. 6185-0-3. Narendra Kanta died in April 1931, leaving defendants 1 and 2, his sons by one wife, and the plaintiff, his son by another wife. The plaintiff claimed 1/3 share in estate left by Narendra but ultimately gave up this claim under the deed of family settlement dated 23 sraban 1388 B.S. so that defendants 1 and 2 became entitled to the estate left by Narendra.

(3.) On 23 December 1936 defendants 1 and 2 made an application to the Collector of Mymensingh under Section 70 of Bengal Act, 7 of 1876, for opening a separate account for their saham of the touzi, and in that application also added a prayer for apportionment of the cess under Section 44, Cess Act, (Act 9 of 1880). On this application the separate account Case No. 172 of 1936-37 was started. The plaintiff did not appear in that proceeding. On 29th June 1937 the separate account as prayed for was opened. Out of the total revenue of Rupees 10,771-11-7, Rs. 6525-10-6 was apportioned as proposed by the applicants (defendants 1 and 2) as payable for the separate account. The original revenue of rupees 10,781.11.0 was reduced to Rs. 10,771-11-7 because some land of this touzi was made khas by the Government and proportionate revenue of Rupees 9-15-5 was deducted therefor. On the same date the Collector made an order under Section 44(3), Cess Act, (Act 9 of 1880) determining the cess payable in the applicants (the present defendants 1 and 2) share to be Rupees 3746- 15-0 only out of the total cess of Rs. 6185-0-8. This apportionment is proportionate to the apportioned revenue. The plaintiff instituted the present suit on 23 January 1939 stating the above facts and alleging (1) that no notice of the proceeding for the opening of separate account or for the apportionment of the cess was ever issued to and served on them, (2) that the said notices were fraudulently suppressed by the defendants, the then applicants, (3) that the plaintiff had no knowledge of the said proceedings, (4) that he has been very much prejudiced by the apportionment of the cess as made by the Collector and (5) that the said apportionment made by the Collector is ultra vires, having been made without jurisdiction.