Saminatha Aiyar vs Govindasami Padayachi and Others

John Wallis, C.J.—I do not think that the decision in Krishna v. Mekmn Peruma ILR (1886) Mad. 44 is any authority for the proposition

mentioned in the order of reference. In that case, a sale of a permanently settled mitta at a time, and in respect of arrears which accrued due, when

some but not all of the joint proprietors were minors, was held not to be prohibited by Reg. X of 1831. The learned Judges were of opinion that an

estate so owned was not one of which the Court of Wards could have assumed management under Reg. V of 1804, and that Reg. X of 1831 only

applied to estates "" which might have but had not been taken under the Court of Wards"". Reg. V of 1804 imposed no restriction on the Court of

Wards with reference"" to the nature of the minor''s property, and consequently the reasoning of the learned Judges in Krishna v. Mekam Peruma

ILR (1886) Mad. 44 has no bearing on the present case where the sole owner of the land is a minor. It has, however, been strenuously contended

before us that, as the minor''s lands are ryotwari, they are not an estate within the meaning of Regulation X of 1881, and that the sale of ryotwari

lands during minority is not prohibited by the Regulation. The estates of minors under the management of the Court of Wards had been protected

from sale for arrears of Revenue by Regulation V of 1804, and Regulation X of 1831 recites that doubts had been entertained as to the liability of

the estate of a minor not taken under the management of the Court of Wards to be sold for arrears of revenue. The doubts must have arisen with

reference to Section 5 of Regulation XXVI of 1802 which empowered the Collector "" where lands may be attached for arrears of revenue"" to

cause the lands of the defaulting proprietor to be sold. This Regulation must be read with Regulations XXV and XXVII of 1802 which were

passed on the same day. It is, no doubt, true, as appears from Sections 1 to 3 of Regulation XXV, that it was then the intention to fix a permanent

assessment on all lands liable to pay revenue to Government but this was to be a gradual process, and the intention was soon abandoned. The

provisions of Regulation XXVI, however, are not limited to such cases. The preamble recites the necessity that the property of landed estates

being malguzary or paying revenue to Government, should in the event of default be liable to sale for the purpose of making good the public

revenue assessed on such lands and shows that it was not intended to limit the power of sale to cases of permanently settled lands only. By Section

2 the Collectors are required to keep public registers for the purpose of registering the landed property paying revenue to Government, terms

which are perfectly general, as are also the terms of the succeeding sections. Section 5 confers a power of sale where lands may be attached for

arrears of revenue, and the subject of attachment for arrears of revenue was dealt with by the succeeding Reg. XXVII of 1802. In that Regulation

again ''proprietor'' was defined so as to include ""all actual proprietors of land who pay the revenue assessed upon their estates immediately to

Government."" Regulation II of 1806, which provided for the establishment of Zillah or District Courts in Districts in which the Permanent

Settlement had not been introduced, enacted in Clause 4, that "" in cases where the engagements may be contracted with the ryots or individual

occupiers of land they shall be regulated by the Regulations of A. D. 1802 and by such subsequent Regulations as may particularly apply to them.

Section 6 also provided that Regulations XXVII and XXVIII should be extended to all Districts in which Zillah Courts might be established under

the Regulation, and should be observed by Collectors as well as Zemindars or farmers in their engagements with the ryots or immediate occupiers

of the soil. The necessity for this provision, so far as Collectors are concerned, is not apparent, but however this may be this express extension of

Reg. XXVII cannot be construed as meaning that Reg. XXVI was not to apply to ryotwari lands. It has always been treated as applicable to them.

Seshagiri v. Pichtt ILR (1887) Mad. 452 Secretary of State v. Ashtamurthi ILR (1889) Mad. 89, Subramania Ghetty v. Mahalingasami Sivan ILR

(1908) Mad. 41. It is no doubt true that sales of ryotwari lands for default of payment of revenue were at first rare, and that the coercive process

provided by Reg. XXVII was usually resorted to, a procedure, it may be observed which might eventuate in sale. There is, therefore, no

foundation for the contention that ryotwari lands owned by minors do not come within the protection of Regulation X of 1831 and the answer to

the second question is that there is no such distinction as suggested,

As regards the third question, the answer must be in the negative. It was the duty of the responsible officer under Keg. XXVI of 1802 to

register the plaintiff as the owner on his father''s death, and the fact that he erroneously registered the widow of the deceased cannot affect the

plaintiff''s rights, and would of itself render the subsequent sale for arrears of revenue in question void as regards the minor, apart altogether from

the Regulation, as held in Secretary of State v. Ashtamurthi ILR (1889) Mad. 89.

In Subramania Ghetty v. Mahalingaswami Sivan ILR (1908) Mad. 41 the Bench of three Judges were dealing with a case where the registered

proprietor had transferred his interest but the transfer had not been registered and was therefore void as against Government by the provisions of

Section 3 of Regulation XXVI and the registered proprietor was therefore held to be the defaulter under the Revenue Recovery Act. That decision

does not apply to the present case.

The answer to the first question must also be in the negative. Section 63 of the Revenue Recovery Act II of 1864 provides that nothing therein

shall be held to bar the operation of the provisions of Regulation X of 1831 in respect to the sale of lands of minors and other disqualified

proprietors. This clearly renders the provisions of Section 59 of that Act inapplicable to cases protected by Regulation X of 1831, and it is

unnecessary to rely on the further ground that, even in the absence of Section 63 the provisions of Section 59 would not apply to lands exempted

from sale by statute.

Sadasiva Aiyar, J.

I agree.

Spencer, J.

I agree as to the answers to be given to the questions in the order of reference. I must confess to having been a little puzzled by the form in

which the second question has been put. It would indeed be strange if the scope of an enactment were to be limited by notions of what is a

considerable estate or of what estates are ordinarily taken charge of by the Court of Wards seeing that '' ordinary ''and'' considerable ''are relative

terms. No doubt it is within the discretion of the Government, upon receiving the reports of Collectors, to decline to order the Court of Wards to

superintend particular estates of incapacitated proprietors (vide Chapter III of Madras Act I of 1902). But I can find no authority for the

suggestion that an estate must be of any definite size or must not be an estate of ryotwari lands in order to give the Court of Wards jurisdiction over

it.

In Regulation V of 1804 the only description given of the estates to which the Regulation applies is that they must be estates of land or other

property paying revenue directly to Government. This would include the holding of a minor ryotwari pattadar. The Regulation provided for the

appointment of guardians by the Zillah Court to minors succeeding as heirs to the joint possession of estates; and Regulation X of 1831 extended

this provision to the heirs of single as well as joint possessors of estates, but it was afterwards repealed in 1890 by the Guardians and Wards Act

so far as it related to the property of minors not under the superintendence of the Court of Wards. This may have been in consequence of the

decision in In re Subramanayan ILR (1883) Mad. 187 as to the powers of the District Court over minors under Act XIV of 1858. The second

section of Regulation X of 1831, which for bide the sale for arrears of revenue, accruing subsequently to his accession, of estates of minors not

under the charge of the Court of Wards has remained ever since unrepealed. This includes the estates of minor sole proprietors not under the

charge of the Court of Wards, like that of the plaintiff in this suit. This section and the preamble to the Regulation and the foot note to Section 20 of

Regulation V of 1804 make it clear that the prohibition extends to minors'' estates of every description not subject to the jurisdiction of the Court

of Wards, and this answers the second question referred to us. But, of course, if a minor is a member of a joint Hindu family governed by the

Mitakshara Law and as such has at birth merely an undivided interest in an estate, no guardian can be appointed by Court as the manager of the

family represents the family, and to such cases the Regulation will not apply.