Sabita Sikdar v. Sudhir Kumar Majumdar — 1945 DIGILAW 214 (CAL)

JUDGMENT Biswas, J. - This is an appeal on behalf of the plaintiffs in a suit for recovery of possession of certain lands upon declaration of their title. The lands appertained to a revenue paying estate being touzi No. 4896 of the Jessore Collectorate, bearing a revenue of Rs. 11-6-8 per year. The plaintiffs, who are two ladies, Sabita Sikdar and Sudharani Sikdar, claimed title by purchase from one Promotha Bhusan Sikdar who had purchased the touzi at a sale for arrears of revenue. The revenue sale took place on 29th March 1939, and the plaintiffs purchased the touzi on 14th December 1939. Admittedly, three separate accounts had been opened in respect of the touzi under S. 10, Bengal Land Revenue Sales Act (10 [XI] of 1859); one for a one-sixth share in the name of defendants 1 and 2 Sudhir Kumar Mazumdar and Subodh Kumar Mazumdar; another for a one-third share in the name of the plaintiffs' husbands, Narendra Nath Sikdar and Bibhuti Bhusan Sikdar; and the third which was the residuary share in the name of a lady Swarnamoyee Debi and others. The sale was occasioned by default on the part of Swarnamoyee's group in paying their share of the revenue. 2. The suit was contested by defendants 1 and 2, the Mazumdars and defendant 3, their mother, in whose favour they had executed a mokarari raiyati lease. The main defence which it is now necessary to consider was a denial of the plaintiffs' title on the ground that their vendor Promotha Bhusan Sikdar had not acquired title by his purchase at the revenue sale, which was impeached as a sale without jurisdiction. It was asserted that, though only the separate account held by Swarnamoyee and her group of cosharers was in arrear, the whole estate had been put up to sale without first exposing the defaulting share to sale as required by Ss. 13 and 14, Revenue Sale Law. The plaintiffs' answer was that the separate accounts had been closed by the Collector and the sale was accordingly valid: in any case that the sale was not void, but merely contrary to the provisions of the Act and hence liable to be annulled only in accordance with the provisions of S. 33 of the Act, and could not be attacked collaterally in the present suit. Both the contentions on behalf of the plaintiffs were overruled by the Courts below, and the suit was dismissed. Hence the present appeal. 3. The two questions which, therefore, arise, are (i) whether the separate accounts had been closed at the date of the sale, as alleged by the plaintiffs, and (ii) if not, whether the sale was without jurisdiction, as alleged by the defendants, having been held contrary to the provisions of Ss. 13 and 14 of the Act (XI of 1859). It is common ground that if the sale was without jurisdiction it could be impeached in the present suit. The first question is a mixed question of fact and law. So far as the facts are concerned, they are not in dispute. As regards the point of law, in my opinion, the Courts below took a correct view in this respect. It appears that as a result of the opening of separate accounts the cesses payable in respect of the estate had also been apportioned amongst the cosharers according to their shares. The holders of the residuary share being in default as regards the payment of the cesses due in their share, the Collector found it necessary to issue an order of attachment under S. 99, Cess Act of 1880, but this produced no satisfactory result. The Collector then decided to take action against the entire estate as contemplated by sub-s. (3) of S. 44, which expressly provides that the apportionment of cesses amongst cosharers on the opening of separate accounts shall be subject to the general responsibility of the holders of the entire estate as mentioned in S. 14 of Act XI of 1859, if the amount of the cesses due on account of any of the shares cannot be recovered as provided in Ss. 98 and 99, Cess Act, from the holders of such share. It is said that acting under a circular of the Board of Revenue, which however has not been produced in the case, the Collector issued a notice purporting to be under sub-s. (3) of S. 44, Cess Act, calling upon the other groups of proprietors to pay up the arrears outstanding against the separate account of the defaulting cosharers, failing which it was ordered that the separate accounts would be closed and the entire estate would be attached under S. 99 of the Act. As this notice produced no response, the Collector thereafter ordered the closing of the separate accounts on 16th June 1937, and a fresh notice under S. 99 issued upon all the proprietors of the estate. The order-sheet in the Cess Act proceeding shows that the estate was subsequently released from attachment and the proprietors were formally notified by the Collector that henceforth they would collect rents in the estate and pay land revenue and cess to the collectorate in the same manner as they used to do before the attachment. 4. The plaintiffs' contention is that the action taken by the Collector under sub-section (3) of S. 44, Cess Act, had the effect of closing the separate accounts, and that the subsequent release of the entire estate from attachment under S. 99 did not and could not re-open the said accounts. The learned Munsif and the learned Subordinate Judge were however both of opinion that notwithstanding the action taken by the Collector, the separate accounts could not be validly closed, and I think they were correct in so holding. Sub-section (3) of S. 44, Cess Act, merely declares the liability of the entire estate for arrears of cess due by the holder of a separate account in case the amount due could not be recovered from the latter in the manner provided in Ss. 98 and 99 of the Act. It is made clear that this general liability is as mentioned in S. 14 of Act (11 [XI] of 1859). In my judgment, this means that where the Collector is unable to recover from the holder of a separate account the amount due in respect of that share, he is entitled to proceed against the entire estate in the manner prescribed in S. 14, Revenue Sale Law. In other words, he is required, first of all, to proceed against the defaulting share and then and then only if the arrear cannot be realised from the defaulting share, he can proceed against the entire estate. But there is no authority granted to the Collector to close the separate accounts, as he purports to have done in the present case. Provision for the closing of separate accounts is made by Ss. But there is no authority granted to the Collector to close the separate accounts, as he purports to have done in the present case. Provision for the closing of separate accounts is made by Ss. 72 and 74A, Land Registration Act (7 [VII] of 1876); S. 72 empowering the Collector to close a separate account or accounts on application made to him by one or more of the recorded proprietors, and S. 74A conferring on the Collector power to act likewise otherwise than upon application. There was no question of any application here for the closing of the separate accounts. Section 72 could not, therefore, be called in aid. As regards S. 74A that section also could not apply, for, under it, the Collector could take action only if he became aware, otherwise than after the receipt of any application under S. 72, that any separate account in respect of any estate "did not represent existing facts." A separate account might cease to represent existing facts within the meaning of this section in diverse ways: as for instance, under circumstances similar to those specified in S. 72, under which the holder of a separate account might make an application for closing it. The share in separate account might no longer correspond with the extent of interest held in the estate, or the share might have been broken up and distributed among the remaining proprietors, and so on. Admittedly, no such ground existed in the present case, and the closing of the separate accounts by the Collector could not, therefore, be justified under S. 74A. Apart from that, as the order sheet shows, the Collector did not purport to proceed under this section at all but acted under sub-section (3) of section 44, Cess Act. As already pointed out, the last mentioned section did not and could not warrant the procedure he had adopted. The first question must accordingly be answered against the appellants. 5. That takes us to the second point as to whether the sale of the entire estate was without jurisdiction. As already pointed out, the last mentioned section did not and could not warrant the procedure he had adopted. The first question must accordingly be answered against the appellants. 5. That takes us to the second point as to whether the sale of the entire estate was without jurisdiction. On behalf of the defendants, it is contended that the sale of an entire estate, where only a share of it held in separate account is in default, is not a sale under the Revenue Sales Act, and the position is sought to be assimilated to that arising in a case where a sale is held in the absence of any arrears due in respect thereof. Reliance is placed on the well-known decision of the Judicial Committee in 25 I. A. 151 Balkishen Das v. Simpson ('98) 25 Cal. 833 : 25 I. A. 151 : 7 Sar. 363 (P. C.), where it was held that Act XI of 1859 does not sanction, and by plain implication forbids, the sale of any estate which is not at the time in arrear of Government revenue. Their Lordships observed: 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 S. 2 Act 7 [VII] of 1868 (Bengal), are framed upon the express footing that they are to be applicable to the sale of estates which are in arrear of duty. 6. There was no question in that case of the entire estate being put up to sale when arrears were due only in respect of a separate account The sale which was impeached there was a sale of a separate share for its own arrear under S. 13 but as it was found that there were no arrears of revenue due in respect of that share their Lordships held that the whole proceedings of the Collector with a view to sale of that share were beyond jurisdiction and were not accordingly entitled to the protection given by the Act in cases where sale was authorised, although it might be attended with some irregularity or illegality. The civil Court would accordingly have jurisdiction to entertain an objection to such a sale, although the point might not have been considered and disposed of by the Commissioner as contemplated by S. 33 of the Act. 7. In my opinion, it is not open to the defendants to invoke the authority of this decision on the facts of the present case. It is not disputed that Swarnamoyee's separate account only was in arrear. But as S. 13 of Act 11 [XI] of 1859 shows, the liability to sale for such arrear is that of the whole estate, only that the Collector is required, in the first place, to put up to sale merely that share from which, according to the separate accounts, the arrear may be due. For only a limited purpose as regards the order of sale is the separate account treated as a separate unit, but the ultimate liability of the entire estate remains, and S. 14 sets out the circumstances in which and the procedure under which the entire estate may be thereafter put up to sale for the same arrear. It cannot be said, therefore, that where the Collector acts in disregard of the provisions of Ss. 13 and 14, he acts without jurisdiction. The sale of the entire estate in the first instance, where only the share in arrear should have been put up first, is undoubtedly an illegality, but a proceeding which is illegal is not necessarily a proceeding without jurisdiction. Between illegality and want of jurisdiction there is a clearly marked line of divergence. Want of jurisdiction might perhaps in every case amount to an illegality, but illegality does not import want of jurisdiction. It may be conceded that as the separate accounts in this case had not been duly closed, the Collector had no authority to expose the whole estate for sale in the first instance, and in so far as he had done so, he had acted illegally and the sale was contrary to the provisions of the Act. But the remedy against such a sale was that prescribed in S. 33, and that seems to be the only remedy that was open. But the remedy against such a sale was that prescribed in S. 33, and that seems to be the only remedy that was open. It appears that there was an appeal to the Commissioner under S. 33 in the present case at the instance of one of the Sikdars, but the appeal was subsequently allowed to be dismissed for default, presumably in view of the private purchase by the plaintiffs. 8. Mr. Mukherjee on behalf of the appellants drew attention in this connection to another decision of the Judicial Committee, namely, in 20 I. A. 165 Rajah Gobind Lal Roy v. Ramjanam Misser ('94) 21 Cal. 70: 20 I. A. 165 (P. C.) which seems to be very apposite. That was a case arising under S. 17 of Act 11 [XI] of 1859, which expressly provides that certain estates under attachment shall not be liable to sale so long as they are held under attachment. And yet it was held that a sale in contravention of this provision for exemption was a sale under the Act. Their Lordships observed; In the opinion of their Lordships, a sale is a sale made under the Act 11 [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 authorised 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. 9. Sections 13 and 14 of the Act may be said also to enact a provision for exemption of the whole estate in certain circumstances, but if a sale is held notwithstanding such exemption, the decision of the Judicial Committee is clear authority for holding that the sale will nevertheless be a sale under the Act, though it will have been contrary to the provisions of the Act. In other words, the sale will not be a sale without jurisdiction, so long as it is a sale for arrears of revenue due in respect of the estate. In other words, the sale will not be a sale without jurisdiction, so long as it is a sale for arrears of revenue due in respect of the estate. It follows, therefore, that in the present case, the sale of the entire estate, when admittedly it was in arrear, though it might be due to the default of a cosharer only in respect of the amount due in her share, could not be impeached as a sale without jurisdiction, merely because the defaulting share had not been first put up to sale, as required by the Act. The sale was open to challenge only in the manner laid down in S. 33 of the Act. On the second point, therefore, I must over-rule the contention of the defendants and set aside the decision of the Courts below. The sale was not without jurisdiction, and the defendants could not impeach it as such in the present suit. The result is that the appeal is allowed, the judgments and decrees of the Courts below are set aside, and the plaintiffs' suit is decreed with costs in all Courts. Three months' time is granted for removal of the structures standing on the land. Leave to appeal under Cl. 15, Letters Patent, is refused.