Ram Prosad Choudhury v. Ram Jadu Lahiri — 1936 DIGILAW 46 (CAL)

JUDGMENT D.N. Mitter, J. - This is an appeal by Defendant No. 1 from the decree of the Subordinate Judge of Nadia dated the 31st March, 1931, by which he set aside a sale held under the provisions of Act XI of 1859. The Plaintiff, who is the Respondent to the present appeal, is a ten anna co-sharer of the Touzi which has been sold, namely, Touzi No. 1267 of the Nadia Collectorate. Defendants Nos. 2 to 7 are owners of the remaining six annas share. It appears that both sets of co-sharers, that is the Plaintiff and Defendants Nos. 2 to 7 defaulted in the payment of revenue for the Kists in respect of which the sale is alleged to have taken place. The case of the Plaintiff is that Defendants Nos. 2 to 7 who owned six annas share in the Touzi defaulted to pay the arrears of revenue kists and got the property sold and purchased it fraudulently in the benami of their relation Defendant No. 1 at a grossly inadequate price. It is said that the property was sold at Rs. 910 while the real value of the property would be something in excess of Rs. 5000. The irregularity complained of was that the sale took place without any service of notice as is required by secs. 5 and 7 of the Revenue Sale Law. It appears that the Plaintiff's ten annas share was vested in the Receiver who was appointed under the provisions of the Insolvency Act, the Plaintiff having been declared an insolvent by the District Judge of Nadia and this is a case in respect of which notices have to be issued under the provisions of sec. 5 of the Revenue Sale Law. The property was sold on the 27th June, 1929. The Receiver preferred an appeal to the Commissioner of the Presidency Division, but his appeal was dismissed on the 19th September, 1929, and the present suit was instituted on the 25th October, 1930, to set aside the sale. Defendant No. 1 alone contested the suit and his defence was amongst others that he purchased the property with. his own money and that be was not a benamdar for other Defendants, and further that all notices. were served duty under the provisions of the Act and that there was no inadequacy of price. Defendant No. 1 alone contested the suit and his defence was amongst others that he purchased the property with. his own money and that be was not a benamdar for other Defendants, and further that all notices. were served duty under the provisions of the Act and that there was no inadequacy of price. On this part of the pleadings several issues were joined. It is not necessary to refer to all the issues for the purpose of the present appeal except issue No. 5 and issue No. 6 and also issue No. 8. The substantial case which was made out before the Subordinate Judge was that notice under sec. 5 was inherently and essentially bad and that the sale must be held to be void for want of compliance with- the provisions of sec. 5, in some essential respects. This ground taken by the Plaintiff prevailed with the Subordinate Judge and he held further that the property worth about Rs. 4000 at least was sold for a grossly inadequate price of Rs. 910. With regard to the other irregularity as to the service of notice under sec. 5, the finding of the Subordinate Judge is adverse to the case of the Plaintiff. It is a fact which is of importance for the purposes of the suit in which this appeal arises that during the pendency of the suit the Plaintiff withdrew a portion of the surplus sale proceeds fetched at the Revenue Sale. The withdrawal was made in the circumstances which are to be found mentioned in the petition which is printed at page 19 of the second part of the paper-book. The Subordinate Judge held that this fact would not disentitle the Plaintiff from carrying on the suit as the case is not affected by the provisions of the Revenue Sale Law as the sale on account of the irregularity in the notice under sec. 5 v/as a void sale and the sale was without jurisdiction and that the provisions of the Act did rot apply. He accordingly decreed the suit but directed the Plaintiff to ref und the sum of Rs. 556-13-2p. with interest and made the granting of the relief for recovery of khas possession dependent on the payment of that sum. Against this decision the Defendant No. 1 has preferred the present appeal and it is contended before its by Dr. He accordingly decreed the suit but directed the Plaintiff to ref und the sum of Rs. 556-13-2p. with interest and made the granting of the relief for recovery of khas possession dependent on the payment of that sum. Against this decision the Defendant No. 1 has preferred the present appeal and it is contended before its by Dr. Pal who appears for the Appellant that the Subordinate Judge was clearly in error in coming to the conclusion that the defect in the notice under sec. 5 is such as to render the sale void. He contends that after all this is a defect which contravenes the provisions of the Act. But, he says, by reason of this defect the Plaintiff was undoubtedly entitled to have the sale set aside as substantial injustice has been found in this case, for he had withdrawn a portion of the surplus sale proceeds and had disentitled himself to maintain the suit under sec. 33 of the Revenue Sale Law. It has been conceded that if the Subordinate Judge's view is correct, namely, that the sale is a void sale, the sale not being strictly under the provisions of the Act, the position is not affected by sec. 33 which would only apply if the sale were only a sale under the Act. It becomes necessary to consider the precise effect in law of; the defect of notice under sec. 5. The defect which has been found is that the notice included a sum as arrear which had not actually become due on the date when the notice was issued. The notice is printed at page 3 of the second part of the paper-book. It will appear from, an examination of the said notice that in respect of the arrear for which notice under sec. 5 was issued there were the following four kists mentioned:-- (1) January 1928... Rs. 22 6 0 (2) March Do... Rs. 10 15 4 (3) June Do... Ra. 20 0 0 (4) June 1929... Rs. 22 6 0 the aggregate of the sums mentioned being Rs. 75-11-4p. Notice was given under secs. 5 and 13 of Act XI, 1859, to the effect that if the said arrear of Rs. 75-11-4p. Rs. 22 6 0 (2) March Do... Rs. 10 15 4 (3) June Do... Ra. 20 0 0 (4) June 1929... Rs. 22 6 0 the aggregate of the sums mentioned being Rs. 75-11-4p. Notice was given under secs. 5 and 13 of Act XI, 1859, to the effect that if the said arrear of Rs. 75-11-4p. be not paid on or before the last day of payment of the revenue which was fixed by the notice in accordance with the provisions of the Act, namely, the 28th March, 1929, then the mahals mentioned in the notice or portions of them situated within the District of Nadia shall, for the said arrears of revenue, be sold by public auction in the office of the Collector of the said District at 12 noon on the 27th June, 1929. It is pointed out that this arrear for June, 1929, had not accrued on the date the notice under secs. 5 and 13 was issued as the said notice bears the date of the 28th February, 1929. (See Ex. 2, page 3, Part II). Question therefore arises if notices were issued in respect of a sum which was not an arrear of duty on that day within the meaning of the Act along with other sums which were arrears of duty within the meaning of the Act, whether such a notice is such as to render the sale absolutely without jurisdiction. It has been laid down by the decision of their Lordships of the Judicial Committee of the Privy Council that where there is no arrear of duty, the sale is not a sale under the Act. We may refer in this connection to the decision in the case of Balkishen Das v. Simpson L.R. 25 IndAp 151: S.C. ILR 25 Cal. 833; 2 C.W.N. 513 (1898), and to later decisions where the proposition so laid down has been reaffirmed by their Lordships of the Judicial Committee, for instance, to the case of Haji Buksh Elahi v. Durlav Chandra Kar L.R. 39 IndAp 177: S.C. ILR 39 Cal. 981; 16 C.W.N. 812 (1912). See also the cases of Mussammat Saraswati Bahuria v. Surajnarain Chandhuri 35 C.W.N. 444 (P. C.) (1931) and Krishna Chandra Bhowmick v. Pabna Dhana Bhandar Company Limited (in liquidation) ILR 62 Cal. 298 : S.C. 39 C.W.N. 103 (1934). 981; 16 C.W.N. 812 (1912). See also the cases of Mussammat Saraswati Bahuria v. Surajnarain Chandhuri 35 C.W.N. 444 (P. C.) (1931) and Krishna Chandra Bhowmick v. Pabna Dhana Bhandar Company Limited (in liquidation) ILR 62 Cal. 298 : S.C. 39 C.W.N. 103 (1934). As has been put by Lord Watson in the case reported in [Balkishen v. Simpson L.R. 25 IndAp 151: S.C. ILR 25 Cal. 833; 2 C.W.N. 513 (1898)]:- The Act does not sanction, and by plain implication forbids, the sale of any estate which is not, at the time, in arrear of Government revenue. The whole clauses of the Act of 1859, in so far as these relate to sales, or to their challenge at the instance of the proprietor, as well as the provisions of sec. 2 of Bengal Act VII of 1868, are framed upon the express footing that they are to be applicable to the sale of estates which are in arrear of duty. 2. That is a simple case, but in the present case it appears that it is complicated by the circumstance that there was an arrear of duty in respect of the first three kists but there was no arrear of duty in respect of the kist of June, 1929. In other words there was an arrear of duty which would in accordance with the principles laid down by their Lordships of the Judicial Committee of the Privy Council in the case of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893) make the sale as one held under the provisions of the Revenue Sale Law. Mr. Ghose who appears for the Respondent has conceded that that decision [Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893)] is the strongest decision which could be cited against him and there are passages in that judgment which would seem to suggest that whenever there is arrear of duty, the provisions of the Act Apply. In the state of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893)] is the strongest decision which could be cited against him and there are passages in that judgment which would seem to suggest that whenever there is arrear of duty, the provisions of the Act Apply. In the state of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893) the scheme of the Act was considered at considerable length by their Lordships of the Judicial Committee of the Privy Council and the provisions were examined in detail and the passage which is pertinent to the present controversy may be usefully cited here:-- In the opinion of their Lordships a sale is a sale made under the Act XI of 1859 within the meaning of that Act, when it is a sale for arrears of Government revenue held by the Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened. 3. Here the provisions of sec. 5 having been contravened and there being an arrear of duty, the sale is a sale under the Act and is hit by the provisions of sec. 33 of the Act. Mr. Ghose has strenuously contended that the decision in the case of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893) has to be scrutinized in the light of the later decision in the case of Dhiraj Chandra Bose v. Hari Dasi Debi L.R. 42 IndAp 58: S.C. ILR 42 Cal. 765; 19 C.W.N. 507 (1914). In that case Lord Dunedin merely affirmed in a few words the decision of this Court. His Lord-ship evidently approved of what was said by this Court and he did not think it necessary to say anything more. If that case is closely examined, there can be no doubt that the judgment of this Court could be supported on the ground that there were no arrears of land revenue in that case. His Lord-ship evidently approved of what was said by this Court and he did not think it necessary to say anything more. If that case is closely examined, there can be no doubt that the judgment of this Court could be supported on the ground that there were no arrears of land revenue in that case. What happened was that although an estate was advertised for sale for arrears of Government revenue, as a matter of fact it was sold for an arrear of a different character in respect of proceedings under the Public Demand Recovery Act which had already been taken and for which certificate was issued. In those circumstances the learned Judges of the High Court pointed out this :-- '' It appears to us that when the Collector has acknowledged payment: in full of the arrears of land revenue for which the sale was advertised, and has elected to proceed by certificate procedure against an error of a different character and has already directed a sale under that procedure, he cannot turn round and treat the arrear under the certificate as an arrear of land revenue, without any notice to the parties under sec. 5, and proceed to sell the property under the land revenue proclamation on the more ground that no special exemption order has been passed. The embankment charges ordered to be levied under the Certificate Act are taken out of the purview of Act XI of 1859 unless and until fresh notices are issued under sec. 5, and they cannot be treated as arrears of land revenue. The sale, therefore, not being for an arrear of land revenue, is liable to be set aside, and the judgment and decree of the Subordinate Judge must be discharged with costs. 4. The facts of the present case have no resemblance to the case just cited. What was said by their Lordships of the Judicial Committee in the case of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893) is not in conflict with the case in Dhiraj Chandra Bose v. Han Dasi Debi L.R. 42 IndAp 58: S.C. ILR 42 Cal. What was said by their Lordships of the Judicial Committee in the case of Gobind Lal Roy v. Ramjanam Misser L.R. 20 IndAp 165: S.C. ILR 21 Cal. 70 (1893) is not in conflict with the case in Dhiraj Chandra Bose v. Han Dasi Debi L.R. 42 IndAp 58: S.C. ILR 42 Cal. 765; 19 C.W.N. 507 (1914), for the facts of the matter case are distinguishable for, it is pointed out, the first requisite needed for holding that a sale is under Act XI is that there must be arrear of land revenue. In the case in Dhiraj Chandra Bose v. Hari Dasi Debi L.R. 42 IndAp 58: S.C. ILR 42 Cal. 765; 19 C.W.N. 507 (1914) as appears from the statement of the case by the learned Judges of the High Court, there was no arrears of revenue. In these circumstances as there was arrear of duty the Subordinate Judge was not right in treating the sale as a sale outside the Revenue Sale Law. We think that the sale was under the Act and it has been wrongly set aside. 5. We are in full sympathy with the Plaintiff Respondent in this case but the Respondent has really disentitled himself to avail himself of any remedy by reason of his subsequent conduct in asking that a portion of the sale proceeds-- might be utilised for payment of his other debts. In this connection we may refer to the petition printed at page 19 of the second part of the paperbook where the Plaintiff who was a Defendant in that case prayed as follows:-- Under the circumstances it is prayed in this petition that a mortgage decree may be passed in favour of the Plaintiff and against these Defendants for the total sum of Rs. 2,480 on account of the claim, inclusive of interest and costs and that a sum of Rs. 556-13-2 which is due to the Defendants on account of surplus of the proceeds of the revenue sale of Lot No. 1, the mehal of touzi No. 1267 out of the mortgage properties and which is now in deposit in this Court as per chalan No. 377, may be ordered to be paid to the Plaintiff and the same may be deducted from the decretal amount and after deducting the said amount from the decretal amount, a decree for the balance sum of Rs. 1923-2 annas 10 gandas may be passed in favour of the Plaintiff against these Defendants with charge for the same on the mortgage properties and the said decree may be declared as the final decree. 6. This is not a case covered by the decision reported in Hurro Lal v. Tirthanund 11 ILR 437; 13 W. R. 423 (1870) which has been cited in the judgment of the Subordinate Judge. There the proceeds were attached and taken in execution of the decree and there was no leave or permission by the defaulter to appropriate the sale proceeds, but the sale proceeds were applied to particular purposes at the instance of the creditor and not at the specific request of the debtor as in the present case. In these circumstances we think that it is not possible to say that the provisions of sec. 33 do not apply to this case. Sec. 33 in so far as it is material runs as follows :-- ''and no person shall be entitled to contest the legality of a sale after having received any portion of the purchase money. 7. This happened, it is true, after the institution of the suit and it prevents the Plaintiff from contesting the legality of the sale after having appropriated a portion of the purchase money towards the payment of a different debt in the way already stated. 8. Mr. Ghose for the Respondents next contends that the purchase being by the co-sharer, the principle of trust and trustee should apply to this case, and he contends that the sale must be held to be a sale on behalf of all the co-sharers and that the relief which may be given must be on these lines, namely, that the sale should be declared as a sale in which all the co-sharers are interested. It is true, as has been laid down by the Privy Council in the case which was cited before us, namely the case of Deo Nandan Prashad v. Janki Singh L.R. 44 I. A 30: S.C. ILR 44 Cal 573; 21 C.W.N. 473 (1910) that fraud in the strict sense of the term--such fraud as would support a common law action for deceit-- is (not?) necessary to be established in order to entitle the Plaintiff, in a case where purchase is made by a co-sharer of property belonging to himself and others, to have the purchase declared for the benefit of all the co-sharers. But an examination of that case will show that there deliberate default was made by the co-sharer who purchased the estate at a revenue sale with a view of ousting his co-sharers and no other sharers were in default. In such a state of f acts it was held that the purchase is for the entire body of co-sharers. But here the default is on both sides--both on the side of the Plaintiff and on the side of the Defendant--and in such circumstances the rule laid down in Deonandan's case (8) can hardly apply. We have been referred to sec. 90 of the Indian Trusts Act, 1913, which is now extended to Bengal. Looking to that section it appears clear that it would be only when a co-sharer takes advantage of the position as such and enters into a transaction to the detriment of the interest of the other co-sharers that the transaction so entered into should be held to be for the benefit of all the co-sharers. Such is not the present case. 9. For all these reasons we are of opinion that the judgment of the Subordinate Judge should be set aside and the Plaintiffs' suit dismissed. We make no order as to costs. Patterson, J. I agree.