NIRMAL NALINI DASI Vs. HARSHA MUKHI DASI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the judgment and decree of the First Court of the Subordinate Judge of Alipore. It arises out of a suit for annulment of the sale of an entire estate for arrears of revenue held under the Bengal Land Revenue Sales Act, 1859. There was an alternative prayer in the plaint for reconveyance of plaintiffs share in the estate sold and for recovery of possession thereof. The plaintiff is the owner of seven annas six gandas two karas and two krantis share of Touzi No. 1088 of 24-Paraganas Collectorate. Defendants 2 to 20 were the owners of the remaining share. Eight separate accounts in respect of this estate, namely No. 1088/1 to 1088/8 were opened under Section 10, Bengal Land Revenue Sales Act, 1859. The plaintiffs were the owners of a half-share in the separate account No. 1088/1 and the whole of the residuary share. He let out his entire interest in the estate in patni and the patnidars under the terms of the patni lease had to pay revenue to Government due from their shares in the estate. The other half-share in separate account No. 1088/1 belonged to defendant 2. The separate account No. 1088/5 belonged to defendant 3, the husband of defendant 2, and his brothers, defendants 4 and 5. A sum of Rupees 56-9-4, being a moiety of revenue for the third kist of 1931-32 in respect of the share 1088/1, fell into arrear. There was also a default in payment of the entire revenue for this kist due from 1088/5, namely Rs. 31-4-11. On 23 March 1932 the Collector put up to sale No. 1088/1 under Section 13, Bengal Land Revenue Sales Act. No bidder was present on the date of the sale. The Collector thereupon declared under Section 14 that the entire estate would be put up to sale on a future date, unless the other recorded sharer or sharers, or one or more of them, would, within ten days, purchase the share in arrear by paying to Government the whole arrear due from such share.

(2.) On 29 March 1932 a part of the demand for the fourth kist from No. 1088/1 was paid. On 8 April 1932 the arrears of the third kist, viz. Rs. 56-9-4 due from No. 1088/1 and Rs. 31-4-11 due from No. 1088/5 were deposited in the Collectorate. On 5 May 1932 the Collector ordered the sale of the entire estate under Section 14 as none of the sharers purchased No. 1088/1 by paying the arrear as declared by him on 23 March 1932, and asked the touzinabis to supply the arrears of the entire estate. On 11 May 1932 he received the particulars and fixed 20 June 1932 for the sale of the entire estate. Notice under Section 7, showing Rs. 187-15-44 as arrears of the entire touzi, was issued and served on 12 May 1932. On 20 June 1932 defendant 1 purchased the entire estate for Rs. 1600. Appeal to the Commissioner was dismissed on 7 December 1932. On 23 December 1932 the sale was declared final and conclusive and an order was made granting sale certificate to defendant 1. All the separate accounts. were closed on 4 January 1933. The present suit was instituted on 4 December 1933. The objections of the plaintiffs to the sale, so far as they are relevant for the purposes of the present appeal, are: (1) That there was no sale according to the provisions of Section 13 of the Act which must precede the declaration for sale of the entire touzi under Section 14, inasmuch as : (a) No. 1088/5 which was also in arrears at the time, was not put up to sale under Section 13(b) No. 1088/1 was put up to sale on 23 March 1932, although the latest date of payment of the arrears of the third kist of 1931-32 was 28 March 1932; (2) that the Collector having accepted payment of the arrears due from the two separate accounts in default on 8 April 1932, that is after having ordered the sale of the entire touzi under Section 14, was legally incompetent to sell the entire touzi on 20 June 1932; (3) that by reason of these illegalities or irregularities there was paucity of bidders with the result that the estate was sold for Rs. 1600 only although its market value was Rs. 20,000.

(3.) Defendant 1 contested each one of these grounds. The learned Subordinate Judge overruled plaintiffs objections to the sale and dismissed the suit. Hence this appeal by them. The first contention of Mr. Bose on behalf of the appellants is that the sale of the entire touzi is void, inasmuch as the sale was contrary to the provisions of Section 3, Bengal Land Revenue Sales Act. The argument of Mr. Bose is this : although Section 3 of the Act gives power to the Collector to sell under the Act a clog upon that power comes into operation when separate accounts are opened under Secs.10 and 11 of the Act, and the provisions of Section 13 not having been complied with in the present case, the clog was not removed, and consequently the sale was void. Section 3 gives jurisdiction to the Collector to sell revenue paying estates for arrears of revenue. Secs.6 and 7 lay down how the notifications for sale are to be issued and notice is to be given to the raiyats of the estates. Secs.10 and 11 deal with the opening of separate accounts, and Secs.13 and 14 lay down the procedure for sale for arrears of revenue when separate account or accounts are opened under Secs.10 and 11. Section 13 is in these terms: Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue the Collector or other officer as aforesaid in the first place shall put up to sale only that share or those shares of the estate from which according to the separate accounts, an arrear of revenue may be due. In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in S.C. of this Act. The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion, or the aggregate of the several separate portions, of jama assigned thereto.