Karu Singh and Others vs Nathuni Lal and Others

Ray, J.—This appeal arises out of a suit instituted by the plaintiffs-appellants for having it declared that the sale of village Andauli bearing tauzi No. 6074 on the Revenue Koll of the Collector of Monghyr, at an auction held on the 3rd June 1940, for arrears of revenue of March kisht of the year, the last date of payment for the kisht being 28th March of that year, was null and void. The defendant 1st party, who is the main contesting respondent here is the auction-purchaser. The defendants 2nd party are mortgagees of the 4 as share of this tauzi, which is exclusive of the plaintiffs'' interest of 12 as in the estate. The defendants 3rd party are the co-sharers, having 4 as. interest in the estate. The present appeal is confined to the interest of the plaintiffs only, namely, 12 as of the tauzi. The defendants 3rd party had brought another suit for the same relief against the very same sale in the same Court. Both the suits were dismissed, and it is only the plaintiffs of one suit who own 12 as. in the tauzi that have come up in appeal.

They challenged the sale, mainly on two grounds. The first ground was that the estate was not in arrear on or subsequent to 28th March 1940, and, therefore, it was sold contrary to the provisions of Act XI (11) of 1859. It was, therefore, contended that it was ultra vires of the Collector to sell the estate. The second ground was that the auction purchasers, namely, the defendants 1st party are mere farzidars of the co-sharers defendants and their mortgagees, namely, defendants 2nd and 3rd parties, who colluded to default in payment of revenue, then got all processes relating to the sale fraudulently suppressed in order to bring about the sale and purchase. No notices under Sections 6 and 7 of the Act were served, and thus there was irregularity in the sale. As a consequence property which is really worth Rs. 8,000 was sold for a sum of Rs. 225 only.

The suit was resisted by the defendant 1st party, the auction-purchaser, on both the counts. It was pleaded that the estate was in fact in arrear, the payment up to the 28th of March, 1940, being short by Rs. 8-4-0, and that there was no collusion; or fraud practised in conduct of the sale, the notices referred to in the plaint were duly served, and the sale was held in accordance with law.

The learned Subordinate Judge negatived the plaintiffs'' case on both these points. He held that Rs. 4-8-0 was really due from the proprietors of the tauzi and that amount was an arrear within the meaning of Section 2 of Act XI (11) of 1859, and 28th March was the last date for payment, as fixed by the Hon''ble Board of Revenue, in accordance with the provisions of Section 3 of the Act, and, therefore, the sale was valid and binding upon the appellants. On the point of suppression of processes and consequent loss on account of the more valuable property having been sold for a paltry sum of Rs. 225, he held that the plaintiffs were not entitled to take up that plea in the Civil Court as they had not specified this as a ground in their appeal before the Commissioner u/s 2, Bengal Land Revenue Sales Act, 1868. For this, he rightly enough relied upon the provisions of Section 83, Act XI (11) of 1859, which lays down:

No sale for arrears of revenue or other demands realisable, in the same manner as arrears of revenue are realisable, 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 have been declared and specified in an appeal made to the Commissioner u/s 2, Bengal Land Revenue Sales Act, 1868.

It is conceded that the ground was not specified as one of the grounds in their appeal to the Commissioner, and in this Court Mr. P.R. Das, who appeared for the appellants, did not debate the point.

This appeal is, therefore, confined to a determination of the single outstanding question whether the sale is null and void on account of the fact that estate was not in arrear at the time of sale.

Before I proceed further to consider the merits of this argument, I wish to add a few words as to the ground that was taken in the appeal to the Commissioner bearing on this point. They said, as it appears from Ex. 5, that the learned Collector ought to have considered the fact that the estate was not in arrears on the day the sale was held, and the Collector in his reply to his ground said:

"The estate was in arrears of revenue for Rs. 4-8-0 on the date of sale". This ground was, as it was presented to the Commissioner at the time of argument, in form and substance, that there was no arrear on account of the fact that Rs. 4-8 0 had been sent to the Collector by one of the co-sharers, by money order, on 1st April 1940, and the point was dealt with by the Commissioner in the following manner:

I do not find that there has been any irregularity in this case such as would vitiate the sale. The last date of payment was 28-3-40. It may be true that petitioner sent the amount due from him as land revenue by money order on the 1st April 1940. The Collector was not bound to accept this without the additional payment of dues for cess. This is not the first time that this estate has been in default and appellants have in my opinion only themselves to blame for the sale.

In this Court the argument that the estate was not in arrears so as to justify a sale has taken a completely different shape. It is in the form that though there are 11 kishts--according to the original kishtabandi falling due on all the months of the year, excepting Bhado, there are two dates, however, namely, 12th January and 28th March on which all arrears have to be paid; that the Collector having purported to sell the estate for the arrears of March kisht of the year 1940 it should be presumed that the arrears due to be paid on 12th January had been paid, and, therefore, what remained to be paid must be the dues of the kishts, according to the kishtabandi, falling due after 12th, January and before 28th March. The 12th, January corresponds to 17th of Pous 1347, and 28th March, 1940, corresponds to 5th of Chait, 1347. The argument is that it is the kishtbandi dues of the months of Pous, Magh, and Phagun, which only had become an arrear, according to the provisions of Section 2 of the Revenue Sales Law, and was thus the only sum payable, as arrear, on 28th March 1940. This sum comes to Rs. 10-13-6, consisting of two annas payable in the month of Pous, that is, Rs. 5-6-9, one anna appertaining to the kisht of Magh, Rs. 2-11-4 1/2 and one anna of Phagun, Rs. 2-11-4 1/2, The appellants, therefore, contend that this sum of Rs. 10-13-6 having been paid on 28th March, the estate cannot be said to be in arrears. Anything more than that was to be paid only by way of a private arrangement between the co-proprietors, and this sum, if not paid on 28th March, could be paid on the following 12th January, 1941, and till then no proceedings could be lawfully taken to sell the estate.

The validity of this argument assumes that what was paid on 12th January was in full satisfaction of all the arrears for which that day was fixed by the Board of Revenue u/s 3 to be the latest day for payment, which, in other words, amounts to saying that the dues that became arrears according to Section 2 of the Act after 28th March, 1939, till 12th January, 1940, had been paid. This, if correct, would mean that three-fourths of the revenue had been paid on 12th January. In substance the contention, therefore, is that the Collector was not entitled to sell the estate until after 12th January of 1941 which is the latest day for payment of the arrears subsequent to 28th March, 1940.

It is complained that the Collector has failed to keep in view the distinctions between "kisht dues" according to kishtbandi "arrear" defined in section 2 of the Act and between "kisht day" and "latest day" for payment fixed by the Board of Revenue for payment of arrears u/s 8. This argument sounds very attractive at first sight and has to be examined carefully. The facts relevant to the issue have to be clearly ascertained in order to find if they justify the assumption upon which the argument is founded.

The kishtbandi paper is Ex. 2, and is of the year 1790-91. The annual revenue is stated to be Rs. 325 in sikka coins. This is divided into two equal parts. The kishts are so arranged that half the revenue is made due within one or other of the two groups of months. The kishtbandi is admittedly according to the era of Fasli year, which begins with the month of Asin. In the Kishtbandi it is clearly shown that Asin, Kartik, Aghan, Pous, Magh and Phagun instalments together make up 8 annas of the revenue due. The Kishts falling due in the months of Chaita, Baisakh, Jeth, Asadh and Sawan make up the other half. Though the estate has been partitioned, there has been no change in the kishtbandi. Applying the principles of Section 2, Act XI of 1859, all the instalments that fall due in the months beginning with Asin and ending with Phagun and making up half the annual revenue must have become, in all certainty, arrears by the first day of the month of Chait, which corresponds to 24th March and, therefore, 28th March, is fixed as the latest day for payment for these arrears, would be quite in accordance with Section 3 of the Act. The other 8 annas kishts commencing with the month of Chait and ending with the month of Sawan become arrear undoubtedly on the first day of Bhado and necessarily the latest day for payment of all these arrears must come some time after the end of Sawan, and it is admitted that 12th January, which corresponds to the 17th Pous, 1347, is one of the dates so fixed u/s 3, and, therefore, it is quite easily conceivable that later half of arrears were made payable as arrear on that date.

It is also permissible under the law to make three-fourths of revenue to be cleared up "as arears" on the 12th January and one-fourth on 28th March. That would be completely in accord with Section 3. But it will appear from the plaintiffs'' own case, as stated in para. 3 of their plaint, that the arrears of annual revenue payable for the entire estate, that is Rs. 43-6-0, have always been paid in two equal instalments in January and March. The plaintiffs further submit that 12th January is the latest date fixed for payment of revenue for January kisht, while 28th March for March kisht. They tried to make out that there were two other kishts, namely, June and September kishts, 7th June and 28th September, being respectively the latest dates for payment of those kishts, but that case has been abandoned and has never been pressed. The fact remains that the above are the only two latest dates for payment of all arrears of revenue fixed by the Board u/s 3. It is noteworthy that this fact is not disputed.

It is also not disputed, as already stated by me, that the distribution for the purpose of payment is half and half, that is to say, half the arrear is to be paid by 12th January and the other half by 28th March. These dates having been fixed u/s 3 of the Act for payment of arrear, default in payment of which will entail the liability of the estate to sale, the Collector will have, in that event, jurisdiction to fix any date for the sale thereof without waiting for the following "latest day for payment" as is contended here. This will also appear to be so from how the parties have been paying the arrears of revenue. The documents that will show this are Exhibits 7 to 7(r). Exhibits 7 (c), 7 (d), 7 (e) and 7 (q) are revenue chalans, showing payment of what is described in those documents as fixed collection of kisht January 1940. All the payments made under these documents come up to a total amount of Rs. 19-1-6 Exhibits 7, 7 (a), 7 (b) and 7 (r) are revenue chalans, showing the amounts paid under the head "fixed collection of kisht March 1940 and they altogether come up to Rs. 13-9.6. There is another Exhibit 7 (s), which is a money order of Rs. 2-13-0 on account of revenue sent to the Collector for this March kisht, 1940.

The payments, therefore which have been received and credited by the Collector in his Revenue Accounts for March kisht come up to Rs. 16-6-6. Adjusting the aforesaid two sums and other small surplus amount standing to the credit of the zamindars, the Collector''s account showed an arrear of Rs. 4-8-0 of March kisht. The conduct of the plaintiffs, in preferring an appeal to the Commissioner on the ground that the Collector should have accepted the sum of Rs. 4-8, which would then have wiped all the arrears that had to be paid by them on 28th March towards March kisht, also corroborates the view that 28th March was the date fixed as the latest date for payment of half the arrear of revenue for the year.

Mr. B.N. Rai in reply contended that they had been making advance payment by paying half the annual revenue, that is, Rs. 21-11-0 on the 28th March, while under the kishtbandi and according to the latest dates for payment fixed by the Board of Revenue they were only liable to-pay Rs. 101 and odd. This is an argument which was not advanced so far, and besides there are no materials on record to come to any finding in support of this contention. He further says that the statement in para. 3 of the plaint as to payment in two equal instalments on the 12th January and the 28th March refers to a private arrangement. Firstly, there is no proof of that. Secondly, conceding for the sake of argument that the equal distribution of arrears of revenue is a matter of private arrangement as between the proprietors, the fact still remains that the 12th January and the 28th March ate the latest dates for payment of all arrears of revenue for the year. If then, as I have shown above, the proprietors had only paid Rs. 19-1-6 on the 12th, January, it necessarily followed that the balance of the annual revenue of Rs. 43 and odd must be cleared up by the 28th March, and any default in payment either of the whole or a part there, of must lead to the consequence of the estate being sold for arrears.

The learned Subordinate Judge has come to a very clear finding with which I concur, in its entirety, that what was payable on the 28th March and what was not paid was an arrear. In their appeal to the Commissioner the plaintiffs had taken up a ground of hardship, and there the Collector had pointed out in reply to their grounds of appeal that the estate had two previous defaults on 12th January 1939, and 28th March, 1939. This has not been challenged by reference to any evidence in this Court, nor is it denied as a fact. Therefore, if they defaulted on 28th March, 1939, they defaulted in the sense in which the Collector maintains his accounts, namely, that they failed to pay half the arrears of the annual revenue on 28th March 1939. The Collector, it must be presumed, must have started proceeding for bringing the estate to sale which must have been averted by satisfaction of the balance remaining in arrear.

Therefore, it must be assumed that all arrears till 28th March, 1939, had been paid off. Then, it may be noticed, that this cuts Mr. B. N. Rai''s argument that they had been paying in advance at the root, because from 28th March, 1939, to 28th March, 1940, is one year, and the revenue due according to the Kishtbandi of the Mahal for the year must have been converted into arrears by 28th March, 1940. Therefore, adjusting what was paid for the January kisht of 1940 and what was paid towards the March kisht of 1940, as shown above, there still remains a balance. This balance, according to the Collector''s revenue papers, is Rs. 4-8-0. The theory of advance payment vanishes. The learned Subordinate Judge accordingly finds:

Such being the position, I cannot agree with the plaintiffs that there was no arrear of revenue left after crediting all the payments made as disclosed by the chalans up to March Kisht of 1940 (vide Exhibit 7 series). The 28th March 1940 corresponded to the 5th of Chait 1347 Fasli and the last date of Phagun of that Fasli year corresponded to 23rd March, 1940. u/s 2 of Act Xl of 1859, the unpaid revenue of a particular month fixed under the original kishtbandi (Ex. 2) becomes an arrear of revenue on the 1st day of the following month. So even according to the settlement kishtbandi the revenus for Phagun 1347 Fasli became an arrear on the 1st of the following Chait corresponding to 24th March 1940. Thus, having applied my mind even to the date of the original kishtbandi, I find that the revenue payable toe Phagun of that year had also become payable as arrear and ought to have been paid up by the arrear kishtbandi on 28th March of that year. Thus we find that the defaulted revenue of Rs. 4 and odd for which sale has taken place, had already become an arrear and ought to have been paid up upto the 28th March 1940. To determine the existence of the arrear I have also applied my mind to the revenue of the year previous to 1940 in the light of the original settlement kishtbandi, and I have found on calculation that the arrears in full had been paid up to March 1939. So the subsequent revenue determined even by the original kishtbandi settlement deed formed the arrears which had to be paid up half in January and the remaining half in March 1940. Having thus considered the matter in view of its different aspects as aforesaid, I feel convinced that the revenue of Rs. 4 and odd for which sale had been held was already in arrears and had to be cleared off by payment before the 28th of March 1940. This was not paid up within the time fixed by Act XI of 1859, but was remitted by money order on the 1st of April, 1940, as stated in paragraph 3 of the plaint of suit No. 204 of 1941.

Nothing has been shown to us to demonstrate the incorrectness or inexactitude of this finding with which I entirely agree. It is obvious from the aforesaid quotation that the learned Subordinate Judge has kept in view the distinction between the kisht dates according to the kishtbandi on which the revenue only falls due and the latest dates for payment fixed by the Board of Revenue according to the provisions of Section 3. He has not confused himself between what is due according to the kishtbandi and what is an arrear. The appellants'' contention, based as it is, on either of the alternatives as premised above falls to the ground as it is neither a fact that they had paid three fourths of the revenue on 12th January, 1940, nor that anything other than what is arrear in law was to have been paid on 28th March and remained unpaid, or, in other words, the deficiency in payment towards March kisht of 1940 was in respect of an arrear, and not what would be due after 28th March. Further support is sought to be drawn, in favour of the appellants'' contention as propounded by them, from the terms in which the arrears for payment of which the sale was held, are described in the sale proclamations and notices, reports of arrears and sale certificate. The proclamations and notices (Ex. G series) mention them a3 "for payment of Rs. 4-8-0 due on account of payment of Government revenue due up to 28tfh March, 1940, current year." Arrear reports (Ex. A series) state : "The estates that have fallen into arrears of land revenue for the kisht ending 28th March, 1940." The sale certificate (Ex. J) states: "Sale took effect on 3rd June, 1940, for satisfaction of Rs. 4-8-0 on account of instalments due up to 28th March, 1940."

The argument based as it is on these descriptions pays little attention to the meaning of the words "due", "kisht" and "instalment" occurring in the above documents. They have no reference to the original kishtbandi. They are terms used in the Collector''s revenue accounts and papers maintained under rules and instructions of the Board of Revenue. The word "due" here means due as "arrears" (within the definition of section 2 of the Act), and the word "kisht" or "instalment" means an instalment fixed for payment of what has already become an ''arrear'' in the statutory sense. For facility of payment and convenience of accounting these instalments are either one, two, or four in a year according as the annual revenue payable is less than Rs. 10, or less than Rs. 50, or more. Accordingly, the year stands divided into two or four parts, and the kisht day or the latest day for payment of arrear is the day with which the above division of the year expires. When any instalment of arrear remains unpaid on the said last day, the collector in his accounts shows the estate in arrear, not in the sense that the unpaid amount be. comes an arrear on and from the day following the latest date, but because the grace period allowed under the section for payment of what had become arrears had expired.

To elucidate the point I shall call attention to the Board''s rules and instructions relevant to the issue which are summarised at p. 9 of the Manual:

In consequence of these changes the Collectorate Tauzi Department since 1895 realised Land Revenue, not according to the instalments fixed in the original agreements, but according to the amounts due as arrears on each latest date of payment. Chapter II, Section 1 of the Manual describes the Tauzi Roll of a district as a list of the estates from which the land and police revenue of the district is collected, showing the revenue assessed upon each estate, divided into the amounts due on each latest day of payment. (The description is not exactly correct as these amounts are really overdue as arrears before each latest day of payment). These instalments are carried forward to the Tauzi Ledger which is written yearly, and are shown also in Return X of the demands, collections and balances which is submitted by the collector after the close of each kist. In respect of Return X it is specially enjoined in Rule 5, Chap, II, Section XVIII, that the ''demand'' for a particular kist should include only those sums for the recovery of which legal steps can at once be taken on the day immediately following the latest day of payment. The Tauzi Department practice is therefore in conformity with the Revenue Sales Law though the instalments of revenue as referred to in Section 2, Act XI of 1859 are no longer noted in its registers. The arrears of revenue which the Collector enters in his Return No. X as not having been paid on the last day of the Tauzi ''kist'', and for which he advertises estates for sale, are a fortiori also arrears of revenue within the meaning of Act XI of 1859 as they remained unpaid on the first of the month of the appropriate era following that on which they were due for payment according to the original agreement.

In order to examine the value of this contention a little more closely I feel it incumbent upon me to deal with a few decisions. The case in AIR 1938 248 (Privy Council) is a case in point. In that case there were two dates fixed by the Board of Revenue, namely, the 12th of January and 28th March, as it is in this case, and there the default was in respect of what the Collector called January kist, and their Lordships after an elaborate reference to the rules framed by the Board of Revenue for the purpose of revenue collections and for the purpose of maintaining the Collector''s accounts came to the conclusion that the word "kist" in the Collector''s account does not mean kist according to kistbandi, but it means the latest day for payment as fixed by the Board of Revenue. Their Lordships have said in that case:

The Tauzi Ledger of this estate mentions Rs. 5-8-10 as the net demand payable in respeot of the January kist. The expression ''kist'' as explained in the Tauzi Manual issued by the Board of Revenue, Bengal, means the period between one latest day for payment of arrears of revenue and the next, and is not used in the restricted meaning assigned to it in Section 2 of the Act. Thus, in the case of this estate, which paid revenue in two instalments the expression ''January kist'' means the period beginning on 29th March and ending on 12th January and the ''kist day'' means the latest day of payment on which that period expires now 12th January 1930, as shown in the Tauzi Ledger, was the latest date for payment of that sum. But it appears from the tauzi Ledger that of the aforesaid net demand, Rs. 4-5-1 was duly paid on or before 12th January 1930; and that only Rs. 1-3-9 remained unpaid on the last day fixed for the payment of arrears. On the expiry of that day the estate became liable to sale by public auction, and the sale on the date in question, namely, 22nd March 1930, did not infringe the law.

This observation can quite appropriately be made applicable to the facts of this case, making only relevant changes with regard to the sums that were payable. In this case, as I have shown, according to the Collector''s Ledger after the latest date for payment of March kist, that is, 28th March 1940, there was an arrear of Rs. 4-8-0 out of the net demand of Rs. 21-11-0. This demand, according to the (method of accounting maintained in the Collector''s Ledger under the rules of the Tauzi Manual, must be arrears.

Reliance is placed by the appellants on the case in AIR 1931 57 (Privy Council) . In that case it was found as a fact that the revenue of Rs. 47 and odd fell due on 28th March and it became an arrear from 1st April while the latest day for payment of the arrear, according to Section 3, was 7th June. The proprietors having defaulted to pay what was payable on 28th March and the property having been sold on the 6th June, their Lordships held that under the scheme of Act XI of 1859 mere default in payment of what was due under the kistbandi should not entail the liability of the estate to be sold. According to Section 3, the Act gave a period of grace to the proprietors to clear the arrears, and no legal proceedings could be validly taken before the latest day of payment expired.

In AIR 1938 248 (Privy Council) , their Lordships said, referring to AIR 1931 57 (Privy Council) :

That judgment cannot betaken as displacing the meaning which their Lordships have, in the present case, shown to attach to the entry of the date 12th January 1930, under the head ''kist'' in the Tauzi Ledger.

They have further said that that case is correct on its own facts.

Next reliance was placed on the Pull Bench case of this Court in Jadunandan Singh v. Srimati Savitri Devi AIR 1933 Pat. 236. That case also holds that when the, original kistbandi is either unknown or forgotten, the dates fixed as the latest day for payment by the Board of Revenue are popularly known as ''kist''. In that particular case there were four such dates, namely, 7th June, 28th September, 12th January and 28th March. The original kistbandi was also before their Lordships. The arrear that remained unpaid was in respect of what ''was payable on 7th June, and their Lordships held that according to the Collector''s accounts what has always been paid on 7th June must be held to be the arrear and not the kist due and, therefore, the Collector had jurisdiction to put the property to sale without waiting for the next latest date for payment of arrears.

The case in AIR 1932 61 (Privy Council) is a case in which the original kistbandi had either been forgotten or unknown but as a fact it was found that the kistbandi dates synchronised with the latest dates for payment.

In Jagadishwar Narayan v. Muhammad Hariq Hussain AIR 1926 P.C. 126 kist dates in the Collector''s accounts were held to be the latest dates for payment of arrears and the sale held between two such latest dates for what was left unpaid in the first of such dates wag held valid.

There remains only one other case which I must deal with at some length. It is the case in Shyam Kishore De and Others Vs. Joy Chandra Datta Ray and Others, . Certain principles have been very lucidly laid down in that case, the most significant of which is that when a plaintiff wants to have it declared that a sale held for arrears of revenue by the Collector is null and void or otherwise invalid, the onus lies very heavily on him to show that there was no arrears of revenue due from him in respect of which the estate might be legally sold and it is also for the plaintiff to show that the Tauzi Register has been incorrectly prepared. They further say.

It seems, therefore, to follow that, when arrears of revenue are shown as being due in the Tauzi Register from any estate in respect of any particular kist, this must be taken as showing, until the contrary is proved, that the last day of the kist, is the latest day of payment for the arrears and that, if such arrears are not paid by that day, the estate will prima facie be liable to be brought to sale under the provisions of Section 3, of Act XI of 1859.

In support of this proposition their Lordships followed the case in AIR 1938 248 (Privy Council) which I have already referred to. In that particular case before coming to their conclusion their Lordships of the Calcutta High Court have said, which can be very appropriately applied to the facts of the present case, that:

In the ease with which we are now dealing, there is nothing to indicate that the Tauzi Ledger had been wrongly prepared, nor have the plaintiffs succeeded in showing that there were no arrears of revenue in existence on 12th January (in the present case on 28th March), in respect of which their estate might be legally sold.

The result of examination, of the aforesaid authorities is that ''kist'' in Collector''s accounts means the kist for payment of arrears and ''kist day'' means the latest dates for payment of such arrears fixed u/s 3 of the Act. The onus is of the plaintiffs to establish that the Collector''s account is wrong. The theory of advance payments propounded by the appellants is based on the hypothesis that from the start of the kistbandi and settlement they have commenced paying in advance in two equal instalments. The Court must not act upon hypothesis but upon realities. I have shown above how after paying the arrears that remained unpaid on the 28th March 1939, the appellants and their co-sharers have paid in course of the whole year, Rs. 4-8-0 less out of Rs. 43 and odd, the annual revenue, and it is this sum of Rs. 4-8-0 which represents the ''arrear'' and not "due".

Having in view the distinction between what is due under a kistbandi and what is an arrear within the meaning of Section 2 of Act XI of 1859 and having regard to the entire evidence on the record I am of opinion that Rs. 4-8-0, which has been described to be the arrear of the March kist, is an arrear within the meaning of Section 2 of the Act, and 28th March 1940, was the latest day for payment of this sum as fixed by the Board of Revenue u/s 3 of the Act. The plaintiffs have failed to establish that this was not an arrear.

Therefore, in agreement with the learned Subordinate Judge in the Court below I hold that the appeal has no merits and must be dismissed with costs.

The cross-objection directed against disallowance of costs to the respondents by the Court below has been pressed, but in the circumstances we do riot think there is any reason to interfere with the order of the learned Subordinate Judge in that connection.

The cross-appeal, therefore, stands dismissed too.

Meredith, J.

I agree.