KALIPADA ROY Vs. MUKUNDA LAL ROY AND ANR

JUDGEMENT

(1.) The suit out of which this appeal has arisen was for recovery of possession of the plaintiff's moiety share of touzi No. 12713 of the Dacca Collectorate and also for mesne profits. The plaintiffs are the minor sons of one Sudhanya Chandra Roy deceased. It appears from examination of the papers of the Collectorate produced in this case that the touzi originally belonged to two brothers Arun Chandra Roy and Sudhanya Chandra Roy who owned eight annas share each. This was the state of things in 1919. In 1920 Sudhanya was recorded as the sole proprietor. Certificate was issued by the Certificate Officer on 16 September 1919 under the Public Demands Recovery Act in respect of cesses due from the estate. In the certificate the certificate debtor's name was mentioned as Joylakshmi Debya manager on behalf of (ka) Arun Chandra Roy and (kha) Sudhanya Chandra Roy. This certificate was duly filed and the property was ordered to be sold. In 1920 it was brought to the notice of the Certificate Officer that Sudhanya had become the sole proprietor and he ordered the sale proclamation to be issued in his name only. The property was subsequently sold for Rs. 50 and purchased by one Krishna Kishore who conveyed it later to defendant 1. This suit was instituted in April 1925 for declaration that the sale under the Public Demands Recovery Act did not pass any title to the purchaser and for recovery of possession of the property from defendant 1. Both the Courts below have found against the plaintiffs and dismissed their suit.

(2.) The only question raised before us is that the certificate having been issued in the name of a wrong person the right, title and interest of the owner did not pass by the sale and the purchaser accordingly obtained no title to the property. This question was not raised in this form in the Courts below. There is no reference to it in the judgment of the trial Court; but in the lower appellate Court it was urged on the ground that at the time the certificate was issued Sudhanya Chandra Roy was major. The question, however, is of some importance and does not depend upon any extraneous evidence but has to be decided on the documents filed in this case. We have therefore to consider as to whether the certificate was properly made in this case and was duly filed. Under Section 4, Public Demands Recovery Act (3 of 1913 B.C), when the Certificate Officer is satisfied that any public demands payable to the Collector is due, he may sign a certificate in the prescribed form being form No. 1 in the Appendix to the Act. Col. 3 of the form requires that the name and address of the certificate-debtor should be given. Under Section 6 the Certificate Officer has to file the certificate in the prescribed form and shall cause the certificate to be filed in his office. On the filing of the certificate further execution will issue under Section 7 and notice under that section shall be served on the certificate debtor in the prescribed form. The notice should specify that a certain sum has been found to be due from the certificate debtor on account of some demand from him under Section 4 or 5 of the Act. The service of the certificate upon the certificate debtor has the effect under Section 8 of an attachment by civil Court and any transfer thereafter of the property or any of his immovable property is to be deemed bad in law. Section 9 is an important section and has to be considered in this connexion. If a certificate is duly made and filed by service of notice effected on the certificate debtor, he may within 30 days from the service of notice under Section 7 or from the date of execution of any process for enforcing the certificate present to the Collector or the Certificate Officer a petition denying his liability in whole or in part. This section gives a valuable right to the certificate debtor and therefore it is necessary that the certificate should be made against and served on the proper person from whom the amount of the debt is due. Part 3 of the Act deals with execution of certificates. Section 20 declares that if a property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate debtor against whom the certificate has been issued, at the time of the sale. The following sections deal with the steps to be taken by the certificate debtor for having the sale set aside. Now under Section 20 what the purchaser gets in a sale under the Pub-lie Demands Recovery Act is the right, title and interest of the certificate debtor. It is therefore necessary in order to pass any title to the purchaser to make the certificate against the proper certificate debtor.

(3.) Now to come to the facts of the present case. As we have said, the certificate was issued against the mother of the minors in which she was described as the manager on behalf of her minor sons. The objection has been thus answered by the learned District Judge in appeal: Arun and Sudhanya never registered their names in the Collectorate and allowed their mother to represent them in the Collectorate. Therefore the certificate made wag legal and binding upon Sudhanya the father of the plaintiffs.