Beni Ray vs Babui Bacha Kuer

Coutts, J.—The facts of this case are shortly as follows:-One Ramsugand Rai had a 7-annas share in village Chit- rauli. His four sons Triloke, Mahadeo, Sirtaj and Sheobasant, on his death, each inherited one quarter share. In the year 1905, 5 annas 3 pies share which belonged to the branches of Triloke, Sirtaj, and Sheobasant was sold in a certificate sale for arrears of road cess and purchased by defendant No. 2, Ruder Prasad. Ruder Prasad sold to Ajgaibi Dube, defendant No. 3, and subsequently Ajgaibi sold to Babui Bacha Kuer the defendant No. 1. The heirs of Triloke Sirtaj sued these defendants for recovery of their shares on the ground that the certificate sale was invalid because there were no arrears of road cess and because the notice under S. 10 of the Public Demands Recovery Act had not been properly served. There were also allegations that the sale proclamation was fraudulently served and that in spite of the various sales the plaintiffs had remained in possession.

The suit was decreed in the Court of first instance, but on appeal to the learned District Judge the suit was decreed in respect of 1 anna 9 pies, the share of Sirtaj who was dead before notices were served, and the plaintiffs who represented his share were declared to be entitled to recover possession on payment to the defendant No. 1 of the sum due to her on account of the payment of encumbrances. The suit was remanded for determination of the exact amount which was payable. The plaintiffs appeal.

The first point urged before us is that the sale was void and inoperative because the notice of demand had not been legally served on the plaintiffs, and the argument on this point is divided into two branches; first, that it had not been served on some conspicuous part the land, and secondly, that sufficient diligence had not been exercised in order to effect a personal service. The first branch of the argument is in my opinion based on a misreading of S. 31 of the Public Demands Recovery Act.

The portion of that section with which we are concerned runs as follows :-

"And, if no such adult male member of his family can be found, the notice may be served by fixing a copy on the other door of the house in which the judgment debtor Ordinarily dwells or carries on business, or by filing a copy thereof in some conspicuous place in the office of the Certificate Officer issuing the same, and also in some conspicuous part of the land, if any, affected by the service of the notice.

It seems clear from the wording of this section that the latter portion of the clause, "and also in some conspicuous part of the land" refers only to cases in Which the service is effected by fixing a copy in some conspicuous place in the office of the Certificate Officer and not to cases in which the notice is served fixing a copy on the outer door of the house in which the judgment-debtor ordinarily dwells or carries on business. If it had been otherwise, the words "by fixing a copy thereof'''' would not have been inserted between the words "or" and "in some conspicuous place."

The next branch of the argument is that due diligence was not exercised in order to have the notices personally served. This contention must also in my opinion fail. It appears that the judgment-debtor could not be found at home nor could service be effected on any adult male member; and the only information which could be obtained was that the persons on whom notice was to be served were in Calcutta.

With meagre information of this kind it was impossible to have a notice served in Calcutta, and the only alternative left was to serve by fixing the copy on the outer door of the house, which was done. We have been referred by the learned Vakil f or the appellants to the decision of Ambica Prasad v. Gopal Buksh Das (1).

That case, however, has no hearing on the present case because in that case there was a permanent change of residence, whereas in the case before us the persons to be served had only gone to Calcutta for a short time and were returning to their own homes.

The last point which has been urged before us is that as the sale has been found to be void in respect of the share of Sirtaj because he was dead before the notice was said to have been served, the sale being one add indivisible it is wholly void. No authority for this proposition has been shown to us and in any case on the facts of the present case it cannot succeed.

Each of the persons to be served had a one-third share in the property, so that even if the sale was void in respect of the share of one of them it would not be bar red in respect of the shares of others whose shares were entirely separate.

In the result I see no reason to interfere with the decision of the learned Subordinate Judge and I would dismiss this appeal.

Ross, J.

I agree.

Appeal dismissel.