AI Structured Summary
Not yet generated for this judgment
Judgment
Macpherson, J.—This was a suit by tie plaintiffs-respondents for setting aside a revenue sale held on the 24th September 1917. The facts are these. An estate known as Chak Maharuddin Khatik is recorded as No. 3309 on the Touzi of the Collectorate of Monghyr with a Government revenue of Rs. 129-13-0. There is no dispute before us that certain separate accounts were opened in respect of shares in this estate, and that, after excluding the shares for which separate accounts had been opened, the residue of the estate bore a sudder jama of Rs. 80-9-0. I ought to mention that it was alleged by the plaintiffs-in their plaint that tie sudder jama of the ijmali share it should have been stated to re Rs. 79-6-0 and that the figure, Rs. 80-9-0, was arrived at by a wrong calculation. This position has been abandoned before us and we must take it as admitted that the residue of the estate bore a sudder jama of Rs. 80-9-0. On the 5th August 1917 the residuary share was advertised for sale "for arrears of revenue and other demands which by law are realisable as arrears of land revenue." The sale took place, as I have mentioned, on the 24th September 1917, and at that sale defendant No. 1, the appellant before us, became the purchaser of the share. The plaintiffs who are interested in the residuary share preferred an appeal to the Commissioner of Revenue u/s 2 of Act VII of 1868. They alleged various grounds of object on, all of which are now admitted to be wholly untenable. The appeal was rejected, and the suit, out of which this appeal arises, was thereupon instituted by the plaintiffs. The grounds of objection to the sale urged by the plaintiffs in their plaint are as follows:
(1) The sadder jama of the residuary share being Rs. 79-6-o there was no arrear of land revenue for which the residuary share could have been put up for sale. It may be mentioned that the arrear to recover which the property was sold was stated in the sale notification to be Rs. 1-11-9.
(2) Notice was not served according to the provisions of Section 6 of Act XI of 1859.
(3) The name of the mahal and the details of the revenue in arrear were wrongly entered in the notice.
(4) Notice as provided by Section 7 of Act XI of 1859 was not served.
(5) The sale was liable to be set aside on the ground that the father of defendant No. 1 who was a co-sharer and whose duty it was to pay the Government revenue, deliberately defaulted in doing so in order to enable him to purchase the share and he did purchase the share in the name of his son, defendant No. 1.
(6) The share was sold at a gross undervalue and the plaintiffs have sustained substantial, injury by reason of the irregularities complained of.
The learned Subordinate Judge, who heard the case at the first instance, had no difficulty whatever in rejecting each and every ground set forth as a ground of attack in the plaint; and in this Court no attempt has been made to impugn the correctness of the decision of the learned Subordinate Judge on these points. But while deciding against the plaintiffs on each and every point raised by them in their plaint, the learned Subordinate Judge has set aside the sale on two grounds; first, on the ground that there was no arrear of revenue for which the sale could be held on the 24th September 2917, and, secondly, on the ground that "the entire residuary share was neither described in the notice u/s 6 nor sold at the revenue sale on the 24th September 1917" and that, as the Collector had no jurisdiction to split up the unit in arrear and to offer for sale something less than that unit, the whole sale was without jurisdiction and should be set aside.
So far as the first question is concerned, I am unable to agree with the decision of the learned Subordinate Judge. The process of reasoning employed by the learned Subordinate Judge is as follows; the share in question was sold to recover the arrears in respect of the June kist but, so it is argued by the learned Subordinate Judge, if the kist or instalment was payable in June the revenue remaining unpaid could not be considered an arrear of revenue until the 1st of July. Now the Government revenue becoming an arrear on the 1st July 1917 was not payable under the rules framed by the Board of Revenue until the 28th of September and, that being so, the share could not be sold on the 24th September 1917. The argument assumes that the term "June kist" as employed by the Board of Revenue means the kist payable in June according to the original settlement and kistbandi of the mahal. Exhibit B, the copy of Touji ledger, shows that the Government revenue is payable in four kists in the following manner:
First kist, Rs. 14-150 payable on the 7th June every year.
Second kist, Rs. 20-1-0 payable on the 28th September every year.
Third kist Rs. 20-2-0 payable on the 12th January every year.
Fourth kist, Rs. 24-15-0 payable on the 28th March every year.
There is no dispute before us that the share in-question was sold to recover an arrear payable on the 7th June 1917 and the whole question before us is whether the term "June kist" means the revenue kist payable in June according to the original settlement and kistbandi of the mahal u/s 2 of Act XI of 1859, or whether it means the kist of which the latest date for payment u/s 3 of the same Act is the 7th June. The argument before us assumes that the'' dates for payment of the Government revenue according to the original settle-meat and kistbandi of the mahal tinder Section 2 of the Act are 7th June, 28th September, 12th January and 28th March respectively; and it is indeed remarkable that these are the dates fixed as the latest dates for payment under sections of the Act. There is difficulty in understanding the scheme of the Bengal Land Revenue Sales Act, 1859. Section 2 defines an arrear of revenue" and provides that Government revenue does not become an arrear until the month following that on which, according to the original settlement and kistbandi, the Government Revenue is payable. It provides, in other words, that n the Government revenue is payable in June according to the original settlement and kistbandi of the mahal it does not become an arrear of revenue until the 1st of July. Section gives power to the Board of Revenue to determine upon what dates all arrears of revenue and all demands which by the Regulations and Acts in force are directed to be realized in the same manner as 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. A perusal of Sections 2 and 3 makes it perfectly clear that the Collector should not put up an estate for sale Unless there is an arrear of revenue in respect of that estate and unless the latest date of payment fixed by the Board of Revenue has expired and the default has not been made good. There is no dispute before us that the Board of Revenue under the jurisdiction conferred on it by Section 3 of the Act has fixed the 7th June, 28th September, 12th January and 28th March respectively as the latest dates for payment u/s 3 of the Act. It is, in my opinion, quite impossible to take the view that the 7th June which is the latest date fixed for payment by the Board of Revenue u/s 3 of the Act, is also the date upon which the kist or instalment was payable for June according to the original settlement and kistbandi of the mahal." The coincidence, in my opinion, would be a remarkable one if the arguments advanced on behalf of the plaintiff are to be accepted. According to them the dates of payment according to the original settlement and kistbandi of the mahal u/s 2 of the Act are identical with the latest dates of payment fixed by the Board of Revenue u/s 3 of the Act. There is, however, no evidence before us in what manner the Government revenue was payable in respect of this estate under the original settlement 0and kistbandi of the mahal. It is certainly remarkable that the plaintiffs should not have alleged in their plaint that the 7th June was the date fixed for payment according to the original settlement and kistbandi; it is still more remarkable that they have not alleged that the Government revenue was not in arrear until the 1st of July and that the estate could not be sold until after the 28th of September. That was not the ground specified by them in their "appeal to the Commissioner and I find it quite impossible to support the judgment of the learned Subordinate Judge on this point. Whenever a person seeks to have a revenue sale set aside on the ground that there was no authority in the Collector to t sell an estate having regard to the fact that the latest date fixed for payment by the Board of Revenue had not expired at the date when the property was put up for sale, he should, in order to enable the Court to decide the point, give the dates of the revenue kists according to the original settlement and kistbandi. In my opinion, the learned Subordinate Judge has fallen into this error that he has regarded the revenue kist as falling due on the 7th June whereas the fact is that the 7th June is the latest date for payment of previous arrears. That being so, the Collector had complete jurisdiction to sell the property on the 44th September.
Assuming that I arm wrong in the view which I have taken, the further question which arises is, has the Court. any power to set aside the-salt on the ground that the Collector, should not have put up the property for sale on the 24th September? Section 33 of the Act provides as follows: "No sale for arrears of revenue or other demands realizable in the same manner as arrears of revenue are realizable, made after the passing of this Act, shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the Irregularity complained of; and no such sale shall be annulled upon such ground, unless such ground shall hive been declared and specified in an appeal made to the Commissioner u/s 25 of this Act; and no suit to annul a sale made under this Act shall be received by any Court of Justice, unless it shall be instituted within one year from the date of the sale becoming final and conclusive as provided in Section 27 of this Act: and no person shall be entitled to contest the legality of a sale after having received any portion of the purchase-money.
"Provided, however, that nothing in this Act contained shall be construed to debar any person considering himself wronged by any act or omission connected with a sale under this Act from his remedy in a personal action for damages against the person by whose act or omission he considers himself to have been wronged." It may be assumed that the act of the Collector in patting up the property for sale on the 24th September was contrary to the provisions of the Act; but if it was, there is a complete procedure indicated in Section 30 which the plaintiffs should have followed before seeking their redress in the Civil Court. There was a considerable divergence of opinion on the question whether Section 33 barred a suit in the Civil Court where the act of the Collector amounted not only to an irregularity but to an illegality. It seems to me that that question has been conclusively determined by the Judicial Committee in the case of Gobind Lal Roy v. Ramjanant, Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. app. 536 : 6 Sar. P.C.J. 356 : 10 Ind. app. 679 (P.C.). Section 17 of the Act declares that "no estate held under attachment by the Revenue Authorities otherwise than by order of a judicial authority shall be liable to sale for arrears accruing whilst it was so held under attachment." In the case before their lordships of the Judicial Committee the estate was sold for arres is which accrued while it was subject to an order issued by the Collector under the Cess Act of 1880 for the levy of Road Cess in arrear. The order under the Cess Act of 1880 forbade the payment of rent to any person but the Collector until the amount due for Road Cess was satisfied and their lordships had no difficulty in coming to the conclusion that the order issued by the Collector under the Cess Act was an attachment both in form and in substance and an attachment within the letter and meaning of Section 17 of Act XI of 1859. That being so, their Hardships had no difficulty in holding that the Government sale was contrary to the provisions of Section 17 and that the sale was wholly illegal. Having come to that conclusion their lordships had to consider whether Section 33 of the Act was a bar to the suit which had been instituted by the aggrieved party for setting aside the sale, and they expressed their opinion in the following words: "having regard to the scheme of the Act and the express direction contained in Section 33. we are of opinion that in every case where a sale for arrears of revenue is impeached as being ''contrary to the provisions'' of Act XI of 1859, no grounds of objection are open to the plaintiff which have not been declared and specified in an appeal to the Commissioner" and their Lordships continued as follows: "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 their 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" and their lordships concluded with the following pregnant observations:
Their lordships desire to add that in their opinion it would have been most unfortunate if they had been compelled to adopt the construction placed upon the Act by the Courts in India. Sales for arrears of revenue are of constant occurrence; anything which impairs the security of purchasers at those sales tends to lower the price of the estate put up for sale. It is, therefore, of the utmost importance in the interest of the revenue paying population of India that all questions that can arise as to the validity of a sale for arrears of revenue should be determined speedily, and that when, the sale has once been confirmed by the Commissioner, the purchaser should not be exposed to the danger of having his sale set aside on new grounds." That was a sale held in direct contravention of the provisions of Section 17 of the Act. The utmost that can be urged in this case is that the sale is in direct contravention of the provisions of Sections 3 and 6 of the Act. In my opinion, the utmost that can be said is that the sale has been held contrary to the provisions of the Act. That being so, Section 33, in my opinion, constitutes a bar to the suit inasmuch as the objection was not declared and specified in the appeal made to the Commissioner.
The other question upon which the learned Subordinate Judge has set aside the sale is of considerable difficulty and is, in my opinion, concluded by the decision of the Full Bench of this Court in the case of Mahant Krishna Dayal Gir v. Syed Abdul Gaffur 40 Ind. Cas. 131 : 2 P.L.J. 402 : 2 P.L.W. 229. The learned Subordinate Judge was quite right in following the decision and as that decision is binding on us in this Court, we must hold that the sale was liable to be set aside on the ground urged by the plaintiffs before the learned Subordinate Judge though neither declared or specified in the appeal to the Commissioner, nor taken in the plaint filed in this suit. But it has been argued before us that the case of Mahant Krishna Dayal Gir v. Syed Abdul Gaffur 40 Ind. Cas. 131 : 2 P.L.J. 402 : 2 P.L.W. 229 was wrongly decided and as we were asked to invite the Full Court to consider the correctness of that decision, I think that it is my duty to express my opinion on that case. I have dealt with the whole question in an order of reference which I have prepared for the learned Chief Justice under chapter V, rule 6 of the Rules of this Court and all that I need do is to make that order a part of this judgment His Lordship did not make the actual order of reference a part of the judgment, but he has incorporated the substance of that order in it.--[Ed.]. The learned Chief Justice has declined to appoint a Special Bench to re-consider the decision of the Full Bench on the ground that as this case is likely to go to the Privy Council it is unnecessary to put the parties to the costs of a second hearing before a Special Bench of this Court. Speaking with the utmost deference, I think that it was for the Court as a whole sad not for the learned Chief Justice to decide whether a particular Full Bench decision should be considered by this Court in a Bench specially constituted for that purpose. Rule r, Chapter 5, of the Rules of this Court deals with a reference to a Full Bench and gives complete power to the learned Chief Justice to decide whether any case should be referred to a Full Bench where a Division Bench does not differ from another Divisional Bench upon a point of law or usage having, the force of law, but desires that the case should be referred to a Full Beach. Rule 6 deals with a reference to the Special Bench and runs as follows: "Every decision of a Full Bench shall be treated as binding on all Division Benches and Judges sitting singly, upon the point of law or usage having the force of law determined by the Full Bench, unless it is subsequently reversed by a Bench, specially constituted, consisting of such number of Judges as in each case shall be fixed by the Court, or unless a contrary rule it laid down by the Judicial Committee of the Privy Council." It will be noticed that the rule does not say how the decision of a Full Bench should come before a Bench specially constituted for the purpose. But it does give the power to Court, and not to the learned Chief Justice, to determine the question as to the number of Judges that should constitute a Special Bench. It is, in my opinion, only right and proper that the Court as a whole should express an opinion whether it ought tore-consider the decision of a Full Bench. The learned Chief Justice having declined to refer the matter to a Special Bench, I must hold that I am conclusively bound by the decision of the Full Bench in the case referred to; but propose to give my reasons for suggesting, with all respect, that the decision of the majority of the Judges in that case is not correct and that the opinion of Chapman, J., who was in the minority should have prevailed. The facts necessary to remember for the determination of the point are these: The residuary shire consists of 158 bighas 5 kanals Io dhurs of land in eleven different moujas, including 2 bighas 15 cuttahs 12 dhurs in mouza Silempur Khadadad. The sale Notification under Sections 6 and 13 of Act XI of 1859 cerrectly stated the touji number of the estate, the sudder jamma of the whole estate, and the sudder jamma of the residuary share put up for sale; and it described the property to be sold as follows: "The shares have been noted in the reverse. No share other than the ijmali share specified herein shall be sold." " The shares noted in the reverse " give the total area included in the residuary share as 156 bighas 7 cultahs 17 dhurs; and it is admitted that the description is correct in every particular, except as to tmuzah Salimpur Khadadad, the area in which mouzahis erroneously stated tote 17 cuttahs 19 dhurs, whereas it actually was 2 bighas 15 cuttahs 12 dhurs. It will be noticed that an are? of 1 bighaij cuttahs 13 dhurs was left out of the sale Notification out or the total area of 158 bighas 5 cuttahs 10 dhurs included in the residuary share.
Although Mr. Puruendu Narain Sinha on behalf of the appellant (the auction-purchaser) at first contended that the area of Salempur Khadadad included in the residuary share was correctly stated in the sale Notification, he ultimately accepted the finding of the learned Subordinate Judge on this point. It must follow, therefore, that the area in one of the villages was not properly described in the sale Notification. the question at once arises whether the misdescription affected the existence of the jurisdiction of the Collector to sell the share in question, or whether it merely affected the exercise of his jurisdiction. If the conclusion follows that there is an entire absence of jurisdiction in the Collector to sell a share Sinless he describes it correctly and with sufficient clearness, then I must hold that the sale was entirely void and did not operate to convey the share to the defendant No. 1. If, on the other band, I am forced to the conclusion that the error on the part of the Collector did no more than affect the exercise of his jurisdiction, and not the existence of it then it must follow that there was an irregularity in the conduct of the sale which will not entitle the Civil Court to set aside the sale unless the terms of Section 33 of Act XI of 1859 have been complied with. I have cited that section in connection with the other question which I have discussed ; and it will be noticed that the conditions which must be satisfied before a Civil Court will assume jurisdiction to annul a revenue sale are these; first, the Court must be satisfied that the sale was made contrary to the provisions of Act XI of 1859; secondly, there must be proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; thirdly, the ground of attack must have been declared and specified in an appeal to the Commissioner u/s 2 of the Bengal Lana Revenue Sales Act, 1868; and fourthly, the suit must be instituted within one year from the date of the sale becoming final and conclusive as provided in Section 27.
It may be assumed in this case that the sale was made contrary to the provisions of Act XI of 1859, and it may also be assumed that the suit was instituted within the time allowed by law. But there is no proof in this case that the plaintiffs have sustained substantial injury by reason of the irregularity complained of; and, what is more important, although the plaintiffs presented an appeal to the Commissioner under the provisions of Section 2 of the Act of 1868, they did not in that appeal declare and specify the grounds upon which they have succeeded in the Court below. If it is relevant to enquire into the actual or assumed grievance on the part of the plaintiffs, it is certainly remarkable that it did not strike them to formulate their grievance in their appeal to the Commissioner nor to specify it in their plaint as a ground for annulling the sale. T think that it is abundantly clear that, if there was an irregularity on the part of the Collector, and not an entire absence of jurisdiction in the Collector to put up the share for sale, Section 33 of Act XI of 1850 constitutes a complete bar to the maintainability of the suit.
I apprehend that there is no difference of opinion on this point. The difference of opinion arises with reference to the question whether the error committed by the Collector deprived him of the jurisdiction to put up the share for sale.
Now, whatever controversy there may have existed as to the meaning of the term ''jurisdiction,'' I think that the recent Full Bench decision of our Court in the case of Raj Kumar Mahton Vs. Ram Khelawan Singh, has put the matter beyond doubt or speculation. Jurisdiction, in relation to the proceedings of a Court, means the authority of a Court to decide a particular cause or matter. Where the authority exists, the proceedings are binding on the parties 1 until set aside by some process known to the law. They cannot be set aside or disregarded in a collateral proceeding. I think that there is a fundamental distinction between existence of jurisdiction and exercise of jurisdiction, and that those proceedings only can be declared null and void and, therefore, disregarded which have been conducted by a Court not having any authority to conduct them; but that, where the t complaint is as to the mode in which s the jurisdiction has been exercised, the appropriate procedure provided for the removal of the grievance must be pursued if the complainant is to have any remedy for the injury does or supposed to be done to him.
In my opinion, there was complete authority in the Collector to put up the residuary share for sale of the 24th September 1917. 1 I hold, on the evidence, that there was an arrear of revenue within the meaning of that term as defined in Section 2 of the Act of 1859, and that the latest date fixed by the Board of Revenue for the payment of the arrear had expired before the Collector issued the Notification for sale u/s 6 of the Act. I further hold, on the evidence, that all the circumstances existed which entitled the Collector to put up the residuary share for sale on the 24th September 1917 in respect of an arrear of the socallad June kist, that is to say an arrear "the latest date of payment" of which was 7th June. That being so, what authority is there for suggesting that the sale was null and void and that the plaintiffs are entitled to recover their shares from the auction purchaser?
The argument is put on the terms of Section 6 of the Act of 1859 which provides that the Collector shall issue notifications "specifying the estates or shares of estates which will be sold." The argument is this: it was not the intention of the Collector, so it was argued, to put up the residuary share as such for sale without any specification of the interests that made up the residuary share, but that it was his intention to sell the specific properties "noted in the reverse." and that, as the area for sale in one of the villages was stated to be 17 cuttahs 19 dhurs whereas its actual area within the residuary share was 2 bights 15 cuttahs 12 dhurs, there was, first of all, no sale in respect of that which was not put up for sale, namely, the difference between 2 bighas 15 cuttahs 12 dhurs (the actual area of the residuary share of mouzah Salempur Khadadad) and 17 cuttahs 19 dhurs (the area therein which was actually notified for sale) and secondly, the whole sale must be disregarded as null and void, as the Collector had no authority to split up the unit in arrear and to offer for sale something less than that unit.
It may be conceded that the arguments advanced on behalf of the respondents are completely covered by the decision of the majority of the Judges in the Bull Beach case of Mahani Krishna Dyal Gir v. Syed Abdul Caffur 40 Ind. Cas. 13 : 2 P.L.J. 402 : 2 P.L.W. 229. Wow the decision of the Bull Bench is based on the view that "if the notification u/s 6 is not according to law, but, nevertheless a sale is held, the sale is void and a nullity for want of jurisdiction." No authorities are quoted in support of this proposition, and none have been cited in the arguments before lis. We have investigated the matter for ourselves and have not been able to discover any authority in support of the proposition upon which the decision of the Bull Bench rests. It seems to me that the issue of a Notification is an exercise of jurisdiction, and, however contrary to law that jurisdiction may have been exercised, the exercise of it in a manner not warranted by law could hardly have affected the existence of the jurisdiction to issue the sale Notification u/s 6 of the Act and to put up the estate for sale. In my opinion, the argument is directly negatived by the terms of Section 33 of the Act which provides an appropriate procedure for the removal of a grievance where the sale is made "contrary to the provisions of this Act," that is to say, Act XI of 1859.
The facts present in the Bull Bench case were these. The residuary share of a revenue paying estate bearing Touzi No. 4601 was put up for sale under the provisions of Act XI of 1859. The residuary share included many villages including Khaira Khurd and Sao Khurd, in each of which the plaintiff had an eight annas share. The Notification u/s 6 clearly mentioned that the residuary share having a sudder jamma of Rs. 685-r 1-0 was going to be sold; but the difficulty arose by reason of the fact jhat the Collector gave a list of 38 villages as constituting the residuary share; but committed from the list the eight annas share of the plaintiff in Sao Khurd, and his five annas nine pies (out of eight annas) share in Khaira Khurd. The plaintiff appealed to the Commissioner out of time, and his appeal was, on that ground rejected by the Commissioner. The case was argued before the Bull Bench on the footing that there was no appeal by the plaintiff to the Commissioner. The questions which were debated before the Full Bench were first, what was it that was actually put up for sale and in fact sold by the Collector; and secondly, if, what was sold was, not the residuary share as such, but the different villages which made up the residuary share, whether, having regard to the fact that the plaintiff''s entire share in one village and portion of his share in another village were not included in the list, there was any jurisdiction in the Collector to split up the unit in arrear, as, in effect, he must have done and to offer for sale something less than that unit. The first question turned upon the construction of the sale Notification. The learned Judges constituting the majority, thought that there were two descriptions by which the estate was sold, first a general description, the description of the estate as a residuary estate, and secondly a description by the enumeration of the subject-matter to be conveyed, and they came to the conclusion that the latter description should prevail over the former, especially as'' the list of the mouzas contained in the notification was perfectly self-contained and clear, and the term, ''ijmal,'' used in the sale Notification was a relative term and was not a complete and a distinct description of a subject. They considered that the subject-matter described by the term, ''ijmal'' was uncertain whereas the subject-matter described by the list of villages was definite and certain, end that, as the certain must prevail over the uncertain, the description of the subject-matter by the list of villages should be regarded as the leading description.
I am doubtful whether we are at liberty to apply cases of the English Courts on the construction of Wills and deeds to the construction of a sale Notification issued by the Collector under statutory power. But the success of the whole argument must depend on whether the subject-matter described as ijmal or the residuary share is so uncertain as is supposed by the learned Judges constituting the majority in the Pull Bench case. I am quite willing to conceded that the term residue or residuary share is a relative term and varies from time to time; for it means what is left after excluding from" the whole certain specific shares as to which separate accounts have been opened. But I assert that it is perfectly definite and capable of ascertainment at a given point of time, as, for instance at the date of the issue of the sale Notification.
If the entirety is known and ascertained, and if the separate shares are knowable and ascertainable as, of course, they are, the residue is arrived at by excluding from the entirety the specific separate stares. Now there is a well-known maxim which says that that which is capable of being made certain is certain. How is it possible, then, to suggest that a residuary share is not just as definite and certain as Whiteacre or Blackaere? I am quite willing to concede that unless the residue is described in detail, it is impossible for the intending purchasers to know what is being advertised for sale; and there is such manifest injustice in such a case that provided the appropriate procedure pointed out in the Act is adopted, the Court will subject to the other provisions of the Act, set aside the sale. But the sale will be set aside, not because the estate could not be sold as a residuary estate, but because there is obvious prejudice to the interest of the defaulting proprietor. It is one thing to say that a residuary share as such can under no circumstances be sold; it is another and a different thing to say that a sale of a residuary share as such without specification of what it consists of is an irregularity and will be set aside by the Court, provided the plaintiff establishes that lie has sustained substantial injury by reason of such irregularity, and provided he has followed the appropriate procedure indicated in Section 33 of the Act. I am of opinion that, at any given point of time, the residuary share is a perfectly definite and a certain subject and is capable of being sold as a definite and certain subject, though doubtless a sale of a residuary share as such without specification of what it consists of is liable to be set aside in the circumstances mentioned in Section 33 of the Act.
In regard to the other description, namely, the description by the list of villages, it was confessedly inaccurate; and we know of no authority of the English Courts which allows a confessedly inaccurate description to be regarded as a leading description. In my opinion, the subject-matter described as ''ijmal'' was certain and definite, on the principle that that which is capable of being rendered certain and definite is in fact certain and definite, whereas the subject matter described by the list of the villages was admittedly inaccurate and incorrect. That being so, the description of the subject-matter by the term ''ijmal'' should have been regarded by the learned Judges as the leading description, especially, as the consequence of accepting the other description as the leading description was that the learned Judges were compelled to hold that the entire transaction was null and void. Cases are not wanting where the Courts have had to consider which of the two descriptions by which properties have been conveyed should be regarded as the leading description. These cases are not easy to reconcile and are hardly of any assistance in construing a sale Notification u/s 6 of the Act. But, if the English cases are to be referred to it is necessary to point out that it is always the anxious endeavour of the Courts of law to uphold a transaction rather than to disregard it as null and void; and that, for this reason, where the words used are capable of two constructions, such construction is 1 adopted as tends to uphold the deed. "A deed shall never be void where the words may be applied to any intent to make it good." I know of no cases where a description has been deliberately adopted as a leading description, and then the transaction evidenced by the deed has been wholly disregarded as null and void.
In my opinion, the decision of the Privy Council in the case of Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas. 699 : 42 C. 897 : 2 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 121 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1918) M.W.N. (sic) : 42 I.A> 70 (P.C.) impliedly negatives the view of Mullick and Atkinson, JJ., in the Pull Beach case. That was a case where an ijmal share was put up for sale, but the sale Notification distinctly stated that the ijmal share could not be specified. That case was much stronger from the point of view of the defaulting proprietor than the case before the Full Bench; and, if the point was rightly decided by the Full Bench, the Privy Council should have held that the sale was a nullity and that, it did not operate to convey the residuary share to the auction-purchaser. But that was not the view of the Judicial Committee. Their Lordships certainly set aside the sale, but only on the ground that the requirements of the law bad not, been complied with and that the plaintiffs, by reason of the irregularity had sustained substantial injury. That was a case m which the plaintiffs proceeded under the Act itself and adopted the procedure indicated in Section 33 of the Act; and it is worthy of note that their Lordships examined the evidence to see whether the plaintiffs had sustained substantial injury by reason of the fact of the Collector putting up the residuary estate for sale without any specification whatever, an act which, they deliberately described as an ''irregularity.''
In my opinion, the question was correctly decided by Chapman, J.
The next question is whether, assuming that the estate was Sold by the description of the shares "as noted in the reverse," there is any authority for the view that the whole sale is a nullity, because a small area included in the revenue unit was, by mistake, not Specified in the sale notification? If it be held that the subject-matter was sold, not as described by the term '' ijmal'' but as described by the list of villages, it must follow that that which was not specified in the list was not sold and did not pass. But, with all respect, I am unable to take the view that the sale, though it purported to pass the areas mentioned in the sale Notification, did not in law pass these areas. The conclusion of Mullick and Atkinson, JJ., is based on the view that the Collector has no jurisdiction to split up the unit in arrear and to offer for sale something less than that unit. In my opinion, the question effects the exercise of jurisdiction, and not the existence of it. The Collector was the only person who could decide what were the different items of properties comprised in the revenue unit in arrear. He did decide it, and, in pursuance of statutory authority put up for sale that unit, expressed in terms of bighas and cuttahs in different villages. It is true that in deciding that question, he made a mistake, but if he did make a mistake and if the plaintifs have sustained substantial injury by reason of that mistake, there is a procedure indicated in the Act of which they could have taken advantage for the removal of their grievance. In my opinion there is no question of want of jurisdiction involved in the act of the Collector.
This is my opinion on the question raised by the Full Bench decision of this Court. But that decision is binding on this Court, and, in accordance therewith, I must hold that the sale was rightly set aside by the learned Subordinate Judge. This appeal accordingly falls and must be dismissed with costs.
Macpherson, J.
I agree that this appeal must be dismissed with costs.
I am of the same opinion as my learned colleague and for the reasons set out by him that each of the two grounds on which the learned Subordinate Judge decreed the suit is wrong in law. But his decree cannot be set aside by this Division Bench as we are bound by the decision of the majority of the Full Bench in Mahant Krishna Dayal, Giy v. Syed Abdul Gaffur 40 Ind. Cas. 13 : L P.L.J. 402 : 2 P.L.W. 229 in inspect of the second ground.
Personally I am of opinion that the view of Chapman, J., should have prevailed in that case, and the reasons given by him for his decision, appear to me conclusive.