DINABANDHU CHATTERJEE Vs. ASHUTOSH CHATTERJEE

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal dated 21 June 1935, which reversed the judgment and decree of the Second Subordinate Judge of Faridpur dated 13 August 1932, and set aside the sale of an estate for arrears of land revenue. On 22 March, 1930, a permanently settled estate, bearing tauzi No. 299 of the Backergange Collectorate, was sold by public auction for arrears of land revenue. Three persons, namely Ashutosh Chatterjee, Rai Rajni Kanta Chatterjee and Suresh Chandra Chatterjee, were proprietors of that estate, each owning one-third share therein. The total land revenue assessed on the estate is Rs. 13-1.1, of which Rs. 5-8-10 has to be paid by 12 January of each year, and the remainder Rs. 7-8-3 by 28 March. It is common ground that in respect of the amount of Rs. 5-8-10 which was payable on or before 12 January 1930, two co-sharers, namely the plaintiff, Ashutosh Chatterjee and defendant 2, Rai Rajani Kanta Chatterjee, duly paid their share of the revenue, but the third co-sharer, Suresh Chandra Chatterjee, failed to make any payment. There stood however to the credit of the estate 9 annas and 9 pies, which had been overpaid on account of the previous instalments. After giving credit for this small sum, the Collector found that there was a deficit of Rs. 1-3-9 in the amount of land revenue, which was to be paid by 12 January 1930. The estate was therefore entered in the Arrear List of the Collectorate, and sold on 22 March, 1930, for Rs. 700 to the appellant, Dinabandhu Chatterjee, who was the highest bidder at the auction. Thereupon, Ashutosh Chatterjee impeached the sale on various grounds; and after an unsuccessful appeal to the Commissioner, he brought the present suit in the Civil Court against the auction-purchaser and his own cosharers in the estate. The main ground, upon which the sale was attacked, was that the Collector had no jurisdiction to hold the sale on 22 March, 1930. This ground of attack was repelled by the purchaser, and the dispute between the parties was embodied in the following issue framed by the Court :

(2.) Was the sale of Taluk No. 299 by the Collector of Backergange on 22 March, 1930, at revenue sale, illegal, without jurisdiction, and contrary to the provisions of Act 11 of 1859 ? This issue was answered in the negative by the trial Judge, who upheld the sale and dismissed the suit. On appeal to the High Court, his judgment was set aside, and the suit was decided in favour of the plaintiff. From the judgment of the High Court the auction-purchaser has brought this appeal to His Majesty in Council, and the question which their Lordships have to determine, is whether the sale was held on a date before the latest date fixed for the payment of the arrear of revenue. What is the law which defines an arrear of revenue, and which determines the date upon which an arrear must be paid, the consequence of non-payment thereof on that date being that the estate in arrear becomes liable to sale at public auction ? The law on the subject is contained in the Bengal Land Revenue Sales Act 11 of 1859. By S. 2 of that statute, it is provided that:

(3.) If the whole or a portion of a kist or instalment of any month of the era according to which the settlement and kistbandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue. This Section refers to the kist or instalment of land revenue fixed in accordance with the terms of settlement and kistbandi of an estate, and contemplates the payment of a kist or instalment every month. It then defines an arrear of revenue. If the whole or a portion of a kist or instalment of revenue is not paid on, or before, the last day of the month, during which it was to be paid, the sum remaining unpaid on the first day of the following month shall be deemed to be an arrear of revenue. It will be observed that the Section merely defines an arrear of revenue. It makes it clear that the proprietor of an estate is allowed to pay a kist or instalment on any day during the month for which it has been fixed. The Section does not impose any penalty for the non-payment of the revenue during the month; it merely states that if it has not been paid during the month in which it was to be paid, the sum remaining unpaid becomes on the first day of the following month an arrear of revenue. But the defaulting proprietor does not suffer any harm, even if he does not pay immediately the revenue so declared to be in arrear. The law gives him a period of grace for payment, and this concession is granted by S. 3 of the statute which is in these terms : Upon the promulgation of this Act the Board of Revenue shall determine upon what dates all arrears of revenue . . . shall be paid up in each district under their jurisdiction, in default of which payment the estates in arrear in those districts . . . shall be sold at public auction to the highest bidder.