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Judgment
Kulwant Sahay, J.—These two appeals were argued at great length, and after the completion of the arguments, judgment was reserved, and when notice was given to the parties about the delivery of judgment they intimated that the matter was going to be settled out of Court and asked us to postpone the delivery of judgment. They have this day filed two petitions of compromise. By this compromise, Appeal No. 287 is to be dismissed, and Appeal No. 108 is to be decreed. This is exactly the decision that I had arrived at, but the terms of the compromise are that, although the title of the auction-purchaser at the revenue sale is confirmed, he agrees to re-convey the property on receipt of a certain sum of money to the plaintiffs-appellants in Appeal No. 287. The other respondents in the appeal are not parties to the compromise, and Appeal No. 108 cannot be decreed on compromise so far as the persons other than those joining the compromise are concerned. It is, therefore, necessary to write out a judgment in the appeals.
These appeals arise out of two suits brought by two sets of proprietors of a revenue paying estate, named Bara Lodhway, bearing Touzi No. 3040 in the Gaya Collectorate for setting aside the sale of the estate for arrears of Government revenue held under the provisions of Act XI of 1859. The sale took place on the 6th of January, 1919, for an alleged arrear of Rs. 6-11-0 on account of what is known as the last September, 1918. The defendant No. 1 in both the suits, Rai Bahadur Kashi Nath Singh, was the ostensible purchaser. The two sets of plaintiffs preferred two appeals before the Divisional Commissioner which were both dismissed on the 21st March, 1919. Thereupon Babu Radha Kant Lai, one of the proprietors, instituted Suit No. 177 of 1919 in the Second Court of the Subordinate Judge of Gaya on the 12th of April 1919. Another set of proprietors, Babu Basudeo Narain and others, instituted a separate suit in the said Court of the Second Subordinate Judge at Gaya on the 14th February, 1920, and this suit was registered as No. 25 of 1920. Suit No 177 of 1919 was tried by the Additional Subordinate Judge of Gaya and dismissed by his decision, dated the 16th September, 1922 Suit No. 25 of 1920 was tried by another Subordinate Judge of Gaya, who by his decision, dated the 17th March, 1923, decreed the suit and set aside the sale. Appeal No. 287 of 1922 is by the heirs of Babu Radha Kant Lall, who is now dead, and arises out of Suit No. 177 of 1918. Appeal No. 108 of 1923 is by Rai Bahadur Kashi Nath Singh and others the purchasers at the revenue sale and arises out of Suit No. 25 of 1920.
The two appeals have been heard consecutively one after the other. Some of the points are common to both the appeals while there are some points which are not common.
The allegations contained in the plaint in the suit out of which Appeal No. 287 of 1922, viz., the appeal by the heirs of Babu Radha Kant Lai, arises are shortly these.
Mahal Bara Lodhway bearing Touzi. No, 3040 and sadr jama or Government revenue of Rs. 202-11-7 was held in proprietary interest by the plaintiff and defendants Nos. 2 to 20. The mahal consisted of three villages, viz., Mouza Bara, "Mouza Bazida and Mouza Pipra. The different proprietors held different shares in these three villages. Some of them had shares in all the three villages while others had shares in two of them, and some in only one of them. The shares held by the different proprietors are set out in schedule A annexed to the plaint. The case of the plaintiff is that defendant No. 2, Babu Matukdhari Singh, who along with the members of his family held a 2-annas 13-dams 6-kauri 10-bauris share in each of the Mouzas Bara and Bazida, and 5-annas 2-dams 13-kauris 10-bauris share in Mouza Pipra, was heavily indebted and his share was heavily mortgaged, and in order to get rid of the mortgage he fraudulently made default in payment of the Government revenue with a view to have the whole estate sold for arrears of Government revenue and to purchase the same in the benami of some one, thereby avoiding the encumbrance under the provisions of Act XL of 1859. It is alleged in the plaint that the plaintiff regularly paid his share of the Government revenue, but that Matukdhari Singh deliberately made default in payment of his share so that in the instalment of September, 1918, there was an arrear of Rs. 6-11-0 and on account of this arrear the estate was put up for sale at auction and was actually sold on the, 6th January, 1919. It is alleged, that the manager and tahsildar of the plaintiff, viz., Ramashankar Bhattacharji and Jawahir Singh were aware of the existence of the arrear and of the fact of the estate being put up for sale but in collusion with, Matukdhari Singh they refrained from taking any action to prevent the sale by payment of the arrears, and that Matukdhari Singh himself made the purchase in the farzi name of his relation, Rai Bahadur Kashi Nath Singh, defendant No. 1 in the suit. It is alleged in the first place that the sale, was without jurisdiction and a nullity inasmuch as there was ho arrear of revenue as contemplated by Act XI of 1859 on the date the estate was actually sold by the Collector. It is next alleged that the sale was bad on account of certain illegalities and irregularities in the conduct of the sale, as set out in para. 17 of the plaint. Next, it is alleged that the (sale was brought about fraudulently by Matukdhari Singh and he was the real purchaser, defendant No. 1 Rai Bahadur Kashi Nath Singh being a mere benamidar for him, and that under the circumstances of the case the plaintiff was entitled to a re-conveyance of his share if the sale be held to be a valid sale. Lastly, it is alleged that what was sold was only Mouza Bara having an area of 120 acres 1 Rule 32 p. and not the remaining two Mouzas Bazida and Pipra, the entire area of all the three Mouzas being much more than 120 acres odd. The prayers in the plaint were: First, for a declaration that the sale held on the 6th of January, 1919, was invalid and void and without jurisdiction, secondly, that the sale be set aside on account of illegalities and irregularities in the conduct of the sale; thirdly, that if the sale cannot be set aside then a decree may be made directing a re-conveyance to the plaintiff of his share in the estate as set out in schedule A to the plaint, and lastly, that, in any event, it may be declared that what passed by the sale was an area of 120 acres 1 Rule 32 p. out of the estate bearing Touzi No. 3040.
In the second suit, viz., Suit No. 25 of 1920 giving rise to Appeal No. 108 of 1923, defendants Nos. 1 to 4 are Rai Bahadur Kxshi Nath Singh the purchaser at the revenue sale and the members of his family; defendants Nos. 5 to 15 are Matukdhari Singh and the members of his family. Defendants Nos. 39 to 42 are Babu Radha Kant Lal, the plaintiff in the first suit, and the members of his family, and the other defendants are the remaining co-sharers of the estate. In this suit the allegations as regards the points of law are the same as in the first suit, viz., that the sale was null and void on account of there being no arrears of revenue on the date of sale, and that the sale was bad on account of illegalities and irregularities in, the conduct of the sale. The allegation of fraud, however, as made in the plaint in this suit was different from that made by Babu Radha Kant Lai in his suit. It was alleged in this suit that the arrear of Rs. 6-11-7 falling due in the instalment of September, 1918, was due not only from Matukdhari Singh and the members of his family but also from Radha Kant Lal and other co-sharers and that the sale was brought about by the said co-sharers who intentionally made default in paying their quota of the Government revenue in collusion and in conspiracy with one another for the purposes of depriving the plaintiffs of their share of the estate and of the heavy mortgage lien they had over the share of Matukdhari Singh in the estate. It was alleged that the defendants Nos. 1 to 4, viz., Rai Bahadur Kashi Nath and the members of his family actively or inactively joined the other co-proprietors in the conspiracy to deprive the plaintiffs of their property. It was alleged in this suit also that the real purchaser at the revenue sale was not Rai Bahadur Kashi Nath Singh and the members of his family but Matukdhari Singh and that Rai Bahadur Kashi Nath Singh was a mere benamidar for him. The prayer in this suit was for a declaration that the sale was illegal, null and void or at least bad in law on account of material irregularities and illegalities in the conduct of the sale and, that, therefore, the same may be set aside. There was a prayer in the alternative for a re-conveyance to the plaintiffs of their share in the estate as set out in the schedule annexed to the plaint. There was no prayer in this plaint for a declaration that what passed by the sale was merely an area of 120 acres and odd as alleged in the plaint of Radha Kant Lal. It will appear from, the above statement of the allegations of the plaintiffs in the two suits that the sale was sought to be set aside on the grounds, first, that it was without jurisdiction as there was no arrear on the date of sale, secondly, that the sale was bad in law on account of illegalities in the conduct of the sale, thirdly, that the sale was brought about by fraud of the co-sharers to which the auction-purchaser was alleged to be a party, and that what passed by the sale was only an area of 120 acres odd. The first two points are common to both the suits and may be considered together. The question of fraud has to be considered separately as also the question as regards what passed by the sale.
The learned Subordinate Judge who decided the suit of Radha Kant Lal held that the sale was not null and void on the ground of there being no arrears on the date of the sale, while the learned Subordinate Judge who tried the second suit held that the sale was without jurisdiction inasmuch as there was no arrear on the date of sale. I shall first proceed to consider this question which is common to both the suits. Section 2 of Act XI of 1859 provides that if the whole or a portion of a kist or instalment of any month of the era according to which the Settlement and kistbandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue. Section 3 of the Act provides that the Board of Revenue shall determine upon what dates all arrears of revenue and all payments which by the Regulations and Acts in force are directed to be realised in the same manner as arrears of revenue shall be paid up in each district in default of which payment the estates in arrear in those districts shall be sold at public auction to the highest bidder. It will, therefore, be noticed as pointed out in Amrita Lai Roy v. Secretary of State for India 46 Ind. Cas. 447 : 28 C.L.J. 51 : 22 C.W.N. 769 : 35 C.L.J. 221 in the judgment of Newbould, J., that the liability of an estate to sale under the Act depends on three dates. The first is the date on which the instalment of revenue is payable under the terms of the Settlement. If it is not paid on this date u/s 2 of the Act it does not become an arrear of revenue until the first of the following month which is the second date and though the unpaid sum has become an arrear of revenue, the estate is not liable to sale under the Act unless this arrear of revenue remains unpaid on the latest day of payment as fixed by the Board of Revenue u/s 3 of the Act. This is the third date. The allegation of the plaintiffs in the two suits in the present case is that there was no arrear of Government revenue as defined by Section 2 of the Act on the 6th of January, 1919, when the estate was sold. Their case is that there was default in the September kist of 1918 and that accordingly u/s 2 of the Act it did not become an arrear until the 1st of October, 1918, and the latest date of payment thereof as fixed by the Board of Revenue u/s 3 of the Act was the 12th of January, 1919, up to which date the proprietors were entitled to pay up the arrears and that, therefore, the sale held before the 12th of January, 1919, was void and without jurisdiction. It has been contended on the other hand by the auction-purchaser that what is called as the kist of September, 1918, was not the kist or instalment contemplated by Section 2 of the Act, but the latest date of payment as contemplated by Section 3 of the Act, and that the estate had already fallen into arrears before the instalment of September, 1918,for which the latest date of payment was the 28th of September, 1918, and that, therefore, the sale held after the 28th of September was a valid and legal sale.
The question of importance, therefore, for decision in the present case is as to when the estate fell into arrears. No evidence has been adduced in these suits as regards the original Settlement and kistbandi of the mahal in dispute. It is in evidence that all the records relating to the original Settlement of the mahals in the district of Gaya were destroyed during the Mutiny of the year 1857. It appears from the evidence that the estate bearing Fouzi No. 3010 was constituted into a separate estate under a Collectorate partition effected under the provisions of Act VIII (B.C.) of 1876 which was completed in the year 1887-88. u/s 123 of the Bengal Act, VIII of 1876, the Collector is required to serve a notice on every recorded proprietor of a separate estate informing him that from the date specified in such notice the separate estate assigned to him will be deemed to be separated from the parent estate and to be separately liable for the amount of land revenue specified is such notice and calling upon him to enter into a separate engagement for the payment of such revenue There is no evidence in the present case of any such engagement as is provided for in Section 123 having been entered into by the proprietors of the separate estate Touzi No. 3040. Indeed evidence has been produced in the present case to show that there is no such document in the record room of the Collector of Gaya. Section 125 of Act VIII of 1876 provides that from the date specified in the notice referred to in Section 123 each separate estate shall be borne on the Revenue Roll and General Register of the Collector as a distinct estate separately liable for the amount of land revenue assessed upon it under this Act, and shall be so liable, whether the proprietor has executed an agreement for the payment of the amount of land revenue so assessed upon the said estate, or whether, he shall have failed to execute such agreement. Therefore, we have got no evidence at all in the present case as regards the lasts contemplated by a. 2 of Act XI of 1859 either of the original Settlement or of the engagement entered into by the proprietors after the partition completed in the year 1888. The Board of Revenue has, however, fixed the latest dates of payment u/s 3 of Act XI of 1859. These dates, so far as the estate in dispute is concerned are the 7th June, 28th September, 12th January and 28th March. These dates are commonly known as the June kist, the September kist, the January kist and the March kist. These dates are not the kist dates of the original Settlement as contemplated by Section 2 of the Act. Reference has been made on behalf of the appellants to the Touzi Ledger which is Ex. 4 in Radha Kant''s suit and Ex. 13 in the other suit. It appears on reference to this Touzi Ledger of 1918, that in the first kist, which is the June kist of 1918, a sum of Rs. 5-3-4 is shown as arrear which was paid on the 6tn of June, 1918. Various other sums were paid on the 7th of June on account of the current demand. The lower portion in the same ledger for the first kist shows a demand of Rs. 5-3-4 on account of arrear and of Rs. 38 as current demand, and the payments as shown therein are Rs. 5-3-4 on account of arrear and of Rs. 44-13-0 on account of current demand leaving an excess at the end of the kist of Rs. 6-13-0. In the second kist which is the September kist of 1918, we find that there was no arrear of demand and the excess payment of the previous kist of Rs. 6-13-0 is brought forward in this kist. There was a demand of Rs. 63-10-0 on account of the current revenue for this second kist, and a sum of Rs. 50-2 0 only was paid in this kist which, together with the Rs. 6-13-0 excess payment of the previous kist, made up Rs. 50-15-0. Deducting this sum of Rs. 66-15-0 from the current demand of Rs. 63-10-0 a sum of Rs. 6-11-0 remained due at the end of the kist which is shown there as the balance at the end of the kist. It was for this arrear that the sale was held. It is contended by the learned Counsel for the appellants that the sum of Rs. 5-3-4 shown as arrear in the first kist was the sum which became an arrear in June and not in the previous kist of March, and that similarly the sum of Rs. 6-11-0 shown as the balance at the end of the second kist did not become an an our until the first of the following month, viz., October 1918. This argument is baaed on the supposition that the kist dates in June, September, January and March are the kist dates of the original kistbandi as contemplated by Section 2 of the Act. But, as I have already remarked, there is nothing to show what were the oriv ginal kistbandi dates u/s 2 of the Act. According to the defendants, these dates at the latest dates of payment u/s 3 of the Act, the original kistbandi dates fixed u/s 2 being unknown and forgotten. The presumption of law is that the Collector acted properly in holding the sale. It lies on the plaintiffs to prove that the sale was brought about improperly, and that the Collector had no jurisdiction to effect the sale. The plaintiffs have to prove that the dates in June, September, January and March are the dates, contemplated by Section 2 of the Act, otherwise the presumption would be that they are the lastest dates of payment, and everything in connection with the sale was regularly done. Under the provisions of Section 3 of Act XI of 1859, the Board of Revenue has fixed the latest dates of payments, and they are to be found in the rules made by the Board of Revenue under the Revenue Sale Law and printed at page 152 of the Revenue and Patni Sale Manual published under the authority of the Board of Revenue, Bihar and Orissa. The sum of Rs. 5-3-4 shown as arrear in the Touzi Ledger, is clearly the balance due before the previous kist of the 28th of March the latest date of payment whereof was the 28th of March, and the estate might have been sold for this arrear after the 28th of March. The Touzi Ledger is prepared under rules framed by the Board of Revenue, and on a reference to Rule 5 Section 18 of the Board''s Rules printed at page 58 of the Board Touzi Manual, 1923, it would appear that the word "demand" occurring in the Touzi Ledger means "sums due from proprietors, farmers or raiyats for the recovery of which legal steps can at once be taken on the day immediately following the latest day of payment". The foot note on pages 94-95 in Part III of the paper-book in Appeal No. 108 of 1923 shows that the dates 7th June, 28th September, 12th June and 28th March, which are shown there as the first, second, third and fourth kists, are the latest dates of payment. The heading is "Annual demand of the land revenue", and according to the definition of "demand" as contained in Rule 5 of the Touzi Manual, just mentioned it would mean the latest date of payment and not the kist dates as contemplated by Section 2 of Act XI of 1859. The word "kist" is denned in Chap, I, Rule 5 of the Touzi Manual as indicating the period "between one latest day of payment of arrears of revenue and the next" and has not the restricted meaning assigned to it in Section 2 of Act XI of 1859. Therefore, no argument in favour of the plaintiffs can be based on the use of the words "kist" and "demand" in the Touzi Ledger.
Reference has been made on behalf of the appellants in Appeal No. 287 to a document marked as Ex. 17 in that case and printed at pages 124-25 of Part III of the paper-book in that appeal. This is an extract from the Revenue Roll and it gives at the top the revenue as divided into instalments according to the months of the fasli year. In the lower part of this extract is given the land revenue Touzi Roll prepared under the Touzi Manual, Appendix P, and in this the instalments of the revenue are shown as payable on the 7th June, 28th September, 12th June and 28th March, and from this it is argued that these are the kist dates as contemplated by Section 2 of Act XI of 1859 as fixed after the partition. But, on a reference to the Touzi Manual, it appears that this is not so. Chapter II, Section 1, Rule 1 of the Touzi Manual states that the Touzi Roll of a district is 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 amounts due on each latest day of payment. It is, clear, therefore, that the dates given in this Revenue Roll as the instalments in June, September, January and March are the latest dates of payment.
Reliance has been placed by the appellants in Appeal No. 108 upon the deposition of their witness, Saiyid Abdul Ghani, who says that after confirmation of the batwara the kists payable for revenue were told to the maliks, they were the same four kists which existed from the Permanent Settlement, and that the maliks were also informed that in case of default of one kist the amount might be paid in the next kist. It is clear that this witness is not a competent witness to speak of the kists settled at the time of the Permanent Settlement. Moreover, from his cross-examination, it appears that this witness wants to make out that there was a regular proceeding before the Collector under which the kistbandi of the mahal was settled but no such proceeding has been proved in the present case. This witness is not a reliable witness, and it cannot be held upon his testimony that the dates in June, September, January and March are the dates of the kistbandi under the Settlement as contemplated by Section 2 of the Act.
Reliance has been placed on behalf of the appellants upon a number of decisions, most of which have nothing to do with the facts of the present case. I propose to deal with the decisions which have some bearing on the present case. In the case of Haji Buksh Ilahi v. Durlav Chandra Kar 16 Ind. Cas. 821 : 39 C. 981 : 16 C.W.N. 842 : 23 M.L.J. 206 : 12 M.L.T. 385 : (1912) M.W.N. 1005 : 14 Bom. L.R. 1063 : 10 A.L.J. 452 : 16 C.L.J. 620 : 39 I.A. 177 (P.C.) the appellant was the holder of a Government tenure in Dihi Panchanagram under a kabuliyat executed by his predecessor-in-title in the year 1874. The kabuliyat provided for payment of the jama in the Collectorate within the 28th day of June, every year. The provisions of Act XI of 1859 were made applicable to such tenures by Act VII of 1868. The Revenue Authorities treated the date 28th of June as the latest date of payment. It was held by the Privy Council that by Section 2 of Act XI, the revenue became an arrear on the 1st of July following. The Board of Revenue by a notification u/s 3 of the Act had fixed 28th June of each year as the latest date of payment. The default was, made on the 28th of June 1902, it, therefore, became an arrear on 1st of July 1902, and the estate was not liable to sale until the 28th of July of the following year. Therefore, the sale which was held in March 1903 was held to be an invalid sale held without jurisdiction. In that case the original kistbandi u/s 2 of the Act was known, and the Privy Council held that the revenue did not become an arrear until the first of the following month. In the present case the original kistbandi u/s 2 is not known, and this case is of no help to the appellant.
Reliance has next been placed by the learned Counsel for the appellants upon a decision of a Division Bench of this Court in Chhakowri v. Secretary of State for India 52 Ind. Cas. 990 : 5 P.L.J. 66 : (1920) Pat. 1. This case, no doubt, lends a certain amount of support to the argument advanced on behalf of the plaintiffs-appellants, but no distinction was drawn there between the dates fixed u/s 2 and those u/s 3 of the Revenue Sale Law. The same dates were taken as fixed under both the sections. There was, however, nothing to show that the two dates contemplated by Sections 2 and 3 coincided. Eeliance was placed by the learned Judges for their decision upon the case of Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 : 13 Ind. Dec. (N.S.) 572. On an examination of that case, it is evident that it does not support the decision in Chhakowris case 52 Ind. Cas. 990 : 5 P.L.J. 66 : (1920) Pat. 1. In the case of Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 : 13 Ind. Dec. (N.S.) 572 the original Settlement and the kists fixed after partition, were known, the March kist, as fixed after the partition was not paid, and, therefore, it became anarrear on the 1st of April, and the latest day of payment thereof was the 28th of June. The sale which was held after the 28th of March and before the 28th of June was held to be without jurisdiction. The dates of the original kistbandi being known there was no difficulty in finding out when it became an arrear and what was the latest date of payment thereof. Mr. Justice Das who was one of the Judges who decided the case of Chhakowri Singh has expressed a different view in a recent case in Suraj Narayan Chaudhary Vs. Saraswati Bahuria and Others, , which is in accordance with the view contended for by the learned Counsel for the defendants.
Reliance has also been placed upon the decision of this Court in Bhirukhi Ojha v. Rajbansi Kuer 40 Ind Cas. 638 : 2 P.L.W. 31. In that case there was a default in the June instalment of 1911. The sale was held on the 21st of September 1911. The Subordinate Judge had held that the revenue did not become an arrear until the 1st of July, and the latest date of payment thereof was the 28th of September 1911, and so the sale held before that date was ab initio void. In the High Court, papers were produced to show what the original instalments were. This Court made a remand to find out upon evidence what were the kists of the original Settlement and what were the latest dates of payment thereof. This case, therefore, is of no help to the plaintiffs-appellants.
In Amrit Lal Roy v. Secretary of State for India 46 Ind. Cas. 447 : 28 C.L.J. 51 : 22 C.W.N. 769 : 35 C.L.J. 221 the estate was sold for arrears of January instalment of 1908. The sale was held on the 25th of March, 1908. The sale proved abortive on account of the purchaser''s failure to pay the purchase-money, and there was a re-sale on the 25th of June 1908. The original kistbandi of the mahal as fixed u/s 2 of the Act was not known, and die arguments advanced in that case were similar to the. arguments advanced by the plaintiffs in the present, case. Mr. Justice Chatterjea held that the sale was without jurisdiction. Mr. Justice Newbould, however, held that the sale was a valid sale. Newbould, J., observed as follows: "As the proprietor is, safe, provided he pays his revenue before the latest day of payment, the earlier date on which it is payable under the terms of Settlement has been lost sight of in practice and the later date on which the kist must be paid is called the kist date. That is to say, the kist referred to as the January kist is not the kist payable in January under the kistbandi but the kist for which the latest day of payment falls in January". Chitty, J., observed as follows: "In the papers to which Mr. Justice Chatterjea has referred no doubt, the kist is referred to as the January kist'' or January talab. This may be due to the fact that the original due dates of payment have been lost sight of, and the four latest dates for payment fixed by the Board of Revenue u/s 3, namely, 12th January, 28th March, 28th June and 28th September have been carelessly taken to give names to the several kists, which were really payable before those dates but payment of which might be received up to those dates". These observations apply to the facts of the present case. It is clear that the original kistbandi u/s 2 of the Revenue Sales Act being unknown and forgotten, the latest dates fixed u/s 3 are popularly known as the kist dates. They are clearly not the kistbandi dates as provided for by Section 2, but the latest dates of payment as fixed by the Board of Revenue, u/s 3 of the Act.
On a consideration, therefore, of the evidence and the circumstances of the case and the clear terms of Sections 2 and 3 of the Bengal Revenue Sale Law, it is clear that in the present case 28th of September, 1918, was the latest date of payment, and that the sum of Rs. 6 odd was in arrear for which the sale could legally be held before the 12th of January 1919, and the sale, therefore, held on the 6th of January was not without jurisdiction.
The next point is as regards the irregularities in the conduct of the sale. These are set out in para. 17 of the plaint in the suit of Radha Kant Lal, and in para. 20 of the plaint in the suit of Basudeo Narain Singh. The learned Subordinate Judge who decided the suit of Radha Kant Lai, has dealt with the irregularities urged before him and has come to the conclusion that there was no irregularity in the sale. The learned Subordinate Judge who decided the suit of Basudeo Narain. Singh having held that the sale was void, did not think it necessary to dilate upon the alleged irregularities resulting in the sale. He refers only to one point, namely, that the revenue assessed on the estate was Rs. 202-11-7, but the notification u/s 6 of the Act showed the revenue to be Rs. 202-12-0. He does not refer to any other irregularity in the course of his judgment; but the finding that he comes to is that the sale was vitiated with irregularities and illegalities and was fit to be set aside. Before us the irregularity mainly pressed by the learned Counsel for the plaintiffs-appellants was that the notification u/s 6 of Act XI of 1859 was not properly drawn up inasmuch as the description of the property-was incomplete, the sadr jama stated therein was incorrect, and that the names of the, proprietors of the estate were not set out.
The notification u/s 6 of Act XI of 1859 issued by the Collector is Ex. G-1 and is printed on page 45 of the Paper-book, Part III, Appeal No. 287 of 1922. The second column gives the name of the mahal which was going to be sold as Bara Lodhway, Perganna Maher. Reference has been made by the learned Counsel to register D of Bara Lodhway (Exs. 5 to 52) printed on pages 90 to 93 of the paper-book in the said appeal, in which the area of the estate is shown as 120 acres 1 Rule 32 p. Now, this, as a matter of fact, is the area of only one of the villages comprising the estate Bara Lodhway Touzi No. 3040, namely, of Mouza Bara alone. The other two villages Bazida and Pipra are not shown anywhere in this register D. Exhibit 6 contains extracts from register A, and the aerial No. 831 is of the estate Bara Lodhway Perganna Maher, bearing Touzi No. 3010, and the specifications of Mouzas in col. 5 contains the name of Mouza Bara Lodhway bearing No. 648 in the Mouzawar Register and having an area of 120 acres 1 Rule 32 p. with a Government revenue of Rs. 202-12-0. Exhibits 7 to 73 we extracts from register C, namely, the Mouzawar register kept by the Collector. In this register we get the names of four Mouzas Bara Lodhway bearing No. 636, Bazida bearing No. 637, Pipra bearing No. 618 and Dhaneta (wrongly printed as Diha) bearing No. 198. The areas of the four Mouzas are given in the third cloumn, and the 5th column gives the numbers borne by these Mouzas in the General Register A. In this register the area of 120 acres is shown as against the fourth village. It is further to be noticed that while in the register A (Ex. 6) Bara Lodhway is said to correspond to No. 648 in the Mouzawar Register, in the Mouzawar Register (Ex. 7) No. 618 is Mouza Pipra and not Bara Lodhway which has got a different number, viz., No. 636. The area also do not agree, and the number in col. 5 of the register C does not correspond with the number in the register A. Exhibit 8 is the". Mahalwar register of Bara Lodhway, and in this register the jama (revenue) is shown as Rs. 392-8-5 in respect of Bara Lodhway. The learned Counsel for the plaintiffs-appellants refers to those registers kept by the Collector and contends that the description of the property as given in the notification of sale u/s 6 was misleading, and that the intending bidders were misled as regards the property which was going to be sold. He refers to the deposition of Mr. Yaqub who was one of the bidders at the sale who says that in bidding at the revenue sale he generally makes inquiries from Register D, that he had referred to register D about Bara Lodhway, and he found that only one Mouza was on sale and the area thereof was 120 acres. He accordingly offered bids up to Rs. 4,800. If the area had been more, he would have bid much higher. Another bidder at the sale, Bipat Ram, also states that he ascertained from register D the area of the estate which he found to be 120 acres. Muhammad Yusuf, another bidder, states that Bipat told him that the area of the estate going-to be sold was 120 acres or 125 acres; and it is argued that, from this evidence, it is clear that the description of the property was not a sufficient description to enable the intending bidders to know as to what was actually going to be sold. His contention is that all the three villages comprised in the estate ought to have been named in the sale notification.
Now, the short answer to this argument given by the learned Counsel for the defendants-respondents is that the Collector does not sell an estate under the Bengal Revenue Sale Law with reference to the registers which he has to keep under the various enactments; nor does Act XI of 1859 refer in any shape or form to those registers. Revenue sales are held under the Revenue Sale Law, and all that is necessary for the validity of the sale is a strict compliance with the provisions of the Revenue Sale Law alone. Now, the Revenue Sale Law distinctly lays down what is to be done "when an estate has to be sold for realization of arrears of revenue. Sections 5, 6, 7 and 13 of Act XI of 1859 prescribe the notifications which the Collector has to issue before holding the sale of an estate. In the present case it is conceded that notification u/s 5 was not necessary. It is also conceded that notification u/s 7 was duly issued and served. The only complaint is as regards the notification u/s 6. Section 13 relates to the sales of shares of an estate and has no application to the present case which was a sale of an entire estate. The form of notification u/s 6 as approved by the Government is given on page 168 of the Revenue Sale Manual published under authority of the Board of Revenue; and Rule 2 of Section 5 of the Rules made by the Board says that the said form should be followed by Collectors as far as possible in notifying estates and shares for sale. The 2nd column, of the form of notification contains the heading, names of mahal and parganna. It leaves it to the Collector to determine in each particular case what description should be given of the estate in order to notify to the public the estate intended to be sold. There is no direction either in the Act or in the rules framed by the Board of Revenue that the description of the estate in the sale notification should be on reference to the registers A, C or D which the Collector has to keep under the provisions of the Land Registration Act, and if the register D and the other registers kept by the Collector be erroneous and do not give a full description of the estate, that is no ground for setting aside the sale of an estate, if the notification of sale contains a correct description of the estate. No doubt, some of the witnesses speak of having referred to register D in order to find out the area of the estate; but the purchaser at the revenue sale has nothing at all to do with register D. What was put up to sale was the estate bearing Tousi No. 3040 and named as Mahal Bara Lodhway, Register D has nothing to do with the area of the estate. The Collector is required to prepare and keep four kinds of registers u/s 4 of Bengal Act VII of 1876 which are known as Registers A, B, C and D. Register D is an intermediate register of changes affecting the entries in the general and Mouzawar Registers which are registers A and C. Section 18 of the Act prescribes what are the particulars which the register D should contain. It no where prescribes the area of the estate to be entered in this register. The form of register D as prescribed by the Board of Revenue is printed at pages 86 and 87 of the Bengal Land Registration Manual published under the authority of the Board of Revenue, and this form does not contain any provision for entering the area of the estate in the register. There is no reason why the bidders, if they were really bona fide bidders and wanted to know the area of the estate going to be sold, went to look into the register. D kept by the Collector for the area and not the Record of Rights of the estate prepared under Ch. X of the Bengal Tenancy Act and kept in the Collector''s office. The khewat of the estate would have given a correct idea of the area contained in the estate. It seems, therefore, hard to believe that the witnesses referred to by the learned Counsel for the plaintiffs did really make inquiries as regards the area on reference to the register D. But, assuming that the intending bidders did refer to the registers kept by the Collector under the provisions of the Land Registration Act and did form an incorrect idea of the area of the estate, that, in my opinion, is no ground for setting aside the sale if the description as given in the sale notification was a correct description of the estate. The plaintiff, if he can prove that he has sustained any damage on account of the Collector''s keeping the registers incorrectly, may perhaps have his remedy in a suit for damages, but that will not entitle him to set aside the revenue sale. Moreover, although some of the witnesses say that they were misled as regards the area on a reference to the register D, none of them says that he was misled on a reference to the General Register A or the Mouzawar Register D. Under Sections 7 and 15 of the Land Registration Act these registers have to contain a statement as regards the area; and none of them says that he was misled on a reference to these registers. As a general rule, an intending purchaser will not care So much for the area of the estate as for the income which he will derive from the estate, and this he can easily ascertain on a reference to the Settlement papers of the Record of Rights of the mahal. The khawats (Exs. M and M2) give the area of both cultivated and uncultivated lands and the Government revenue of the estate, and are sufficient to enable intending bidders to form an idea of the value of the estate put up for sale. Moreover, one does not find anything in the plaint of the two suits to suggest that the confusion in the registers kept by the Collector had misled any one at the time of the sale; nor was this taken as a ground for setting aside the sale in the grounds of appeal presented by the plaintiffs before the Commissioner of the Division, a copy whereof has been filed and marked as Ex. C in the case of Radha Kant Lal. One does not find any suggestion in the grounds before the Commissioner to the effect that the wrong area misled any bidder at the time of the sale.
The next misdescription alleged in the sale notification was as regards the amount of the Government revenue, which was stated therein as Rs. 20.2-12-0, whereas the real revenue was Rs. 202-11-7. No doubt, there is this slight difference in the statement of the Government revenue; but there is absolutely no evidence to show that this error did in any way misled any one or affected the sale in any way. This point was taken before the Commissioner, and in dealing with it the Commissioner in his judgment (Ex. A in Radha Kant''s suit) observed that Rs. 202-12-0 was the correct demand as shown in the Revenue Roll and Touzi Ledger and on the appellant''s own showing this was the revenue recorded as payable by the estate for more than.30 years. This misdescription cannot be urged as a ground for setting aside the revenue sale.
The next misdescription in the sale notification pointed out by the learned Counsel for the plaintiffs was, that the name of Bhagwat Prasad alone appeared in the sale notification as the proprietor of the estate with the words "and others," and it is contended that the name of all the proprietors ought to have been set out. There is, in my opinion, no substance in this contention. On reference to register D of the Collector, already referred to, it appears that Bhagwat Prasad''s was the first name in that register, the other names before his having been struck out on account of mutations of names, and his name was given in the notification with the addition, of the words "and others." There is nothing in the law or in the rules framed under the Revenue Kales Law prescribing that when there are a large number of proprietors the names of all of them should be given in the notification''. It is sufficient to give the, name of any one of the proprietors. There is no evidence to show that the absence of, the names of all the proprietors from the sale notification did in any way affect the sale; and the sale cannot be set aside on this ground.
These are all the irregularities complained of, and none of these is an irregularity which would affect the validity of the sale. Reference was made by the learned Counsel for the appellants to the decision of the Privy Council in Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas. 699 : 42 C. 897 : 6 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 559 : 42 I.A. 79 (P.C.). That was a case relating to the sale of a 15-annas 6-dams ijmali share of Mahal Bisthazari bearing Touzi No. 336. This share consisted of 360 villages and there were 148 separate account opened in favour of transferees or purchasers of the interest of individual co-sharers in specific villages or groups of villages. In the notification of sale the specification of the share to be sold was in these terms "ijmali share which cannot be specified, excluding the separate accounts No...." Then followed a long list of the 148 separate accounts and at the end the following words occurred "all other shares besides that specified are excluded from the sale." Their Lordships of the Privy Council, having regard to the circumstances of that particular case, held that this was not a proper description of the property sought to be sold. At page 910 of the report, however, we find that their Lordships observed as follows: "The object of the law as well as of the Board''s Rules requiring specification of the properties to be sold is clearly to enable likely purchasers among the public to know exactly what was going to be sold, and to ensure thereby reasonable competition. When an estate is advertised for sale, it is not difficult to specify it; in the case of shares of estates the work of specification requires care and attention. No hard and fast rule can be laid down in regard to its sufficiency, for it must vary-according to the facts of the each particular case." In the present case, having regard to the nature of the property advertised for sale, which was an entire estate, it is clear that there was no misdescription of the estate, and the specification given was sufficient to enable the intending purchasers to know exactly what was going to be sold. In my opinion, therefore, the sale cannot be set aside on the ground of irregularities.
The next question is a question of fraud which would entitle the plaintiffs to a re-conveyance of their shares in the estate. Now, the two sets of plaintiffs make different cases of fraud in the plaint. Radha Kant Lai alleges fraud against Matukdhari Singh and the purchaser. Rai Bahadur Kashi Nath Singh, Basudeo Narain Singh and others in their plaint impute fraud to all the remaining co-sharers including Radha Kant Lal. In fact their case is a case of conspiracy to deprive the plaintiffs in that suit of the heavy mortgage lien which they had upon the share of Matukdhari Singh. It is, no doubt, true that Matukhdhari Singh''s share was heavily mortgaged. The mortgages are the Ex. 13 series in Radha Kant''s suit. They come to a total amount of Rs. 30,000 and odd, and what was mortgaged was the share of Matukhdhari Singh, and the members of his. family in Bara Lodhway. According to the plaint of Radha Kant Lai, Matukdhari Singh deliberately made a default in payment of Government revenue with a view to avoid the mortgages and to purchase the property himself in the benami of some one else. According to his the real purchaser at the sale is not Kashi Nath Singh, but Matukdhari Singh himself; and, if Matukdhari brought about the sale fraudulently and purchased it himself, it is contended that the plaintiff is entitled to a re-conveyance. It is, as I have said, true that Matukdhari''s share was heavily encumbered. It also appears that Kashi Nath Singh is a near relation of his, being his own sister''s husband. The question, is whether the evidence is sufficient to establish fraud and a benami purchase by Matukdhari Singh so as to entitle the plaintiff to a re conveyance. I, therefore, proceed examine the precise allegations of fraud and the evidence on the point.
Radha Kant''s allegations of fraud are contained in paras. 6, 8, 12, 14, and 16 of the plaint. The case sought to be made is, that Ramashankar Bhattarcharji, the manager of the plaintiff, and Jawahir Singh his tahsildar, represented to him that, they were duped by Matukdhari Singh on the representation that the share going to be sold was not the share in which Radha Kant was interested, and although the said two servants were present at the sale and did actually bid at the sale, they did not deposit the trifling amount of Rs. 6 and odd to save the property from sale; that subsequently Radha Kant Lal came to know that the said servants were actually in collusion, with Matukdhari Singh, and that it was Matukdhari Singh himself who was actually bidding at the sale, and that the ostensible purchaser, Rai Bahadur Kashi Nath Singh, was a mere benamidar for him.
These allegations have to be tested by the aid of the evidence produced in the case. It is clear from the bed-sheet as well as other evidence in the case that Ramashankar Bhattacharji and Jawahir Singh, the servants of Radha Kant, were present at the sale and did actually bid at the sale. Immediately on the conclusion of the sale a petition was filed on behalf of Radha Kant before the Collector which is Ex. B in the case. In this petition there is absolutely no allegation of fraud against anyone. There is nothing here to show that the servants of Radha Kant did not know that their master''s share was being sold; on the other hand, we find it clearly stated in this petition that the entire touzi had been sold. Jawahir Singh and Ramashankar Bhattacharji have not been examined as witnesses in this case. Badrinath, tire mukhtar who filed this petition was also not examined. The Collector in rejecting the application stated that the Assistant Nazir described the share of the estate when putting it up to sale as the Musallam or the entire estate, and that Ramashankar Bhattacharji and Jawahir Singh on behalf of Babu Radha Kant Lai were present in, the Court to bid for the estate, and, that, in fact, Jawahir Singh" offered bids up to Rs. 7,300. Radha Kant has to get rid of this petition before he can succeed in the present suit. His explanation is that he was not aware of this petition; but in his memorandum of appeal before the Commissioner of the Division (Ex. C) he did not. make this allegation; on the other hand in para. 5 he said that the servants were under a misapprehension as to the property which was being sold. There is no allegation of collusion on the part of the servants with Matukdhari Singh; on the other hand, they are represented to be honest servants, but that they were misled. In this memorandum of appeal, there is no suggestion of collusion between Matukdhari Singh and Kashi Nath Singh either; on the other hand, it is stated that Kashi Nath Singh was then at Calcutta, and that he knew nothing about the sale and the purchase in his name. In the plaint the allegation is that the servants were colluding with Matukdhari Singh and that the petition, Ex. B, was a mere camouflage. The only allegation against Kashi Nath is in para, 16 of the plaint where it is stated that the petition, Ex. B, was filed by his servants in collusion with defendants Nos. 1 and 2 in furtherance of the fraud committed by them. The allegation as against Kashi Nath is very vague, and there is absolutely no evidence to support it. Radha Kant Lal in his deposition says that he first came to know about the collusion with his servants from his Dewan Jadubansi Lai. There is nothing in his deposition to implicate Kashi Nath in the alleged fraud. Evidence has been adduced to show that it was really Matukdhari Singh who was offering bids in the name of Kashi Nath. On behalf of the purchaser, Kashi Nath, it is sought to prove that Tulsi Singh a servant of his was bidding in his name. The story told by Babu Dwarka Nath Singh, the cousin of Kai Bahadur Kashi Nath Singh, is that he and his cousin had a desire to purchase some good property and had asked a Mukhtar, Dwarka Prasad, to purchase a property for them, and on the date of the sale of the estate in dispute a servant of his came and informed him that the property had been purchased and that the Mukhtar, Dwarka JRrasad, wanted money for depositing the price thereof. Now, both Tulsi Singh, who is alleged to have offered the bids, and Dwarka Prasad Mukhtar are dead. On the evidence, one cannot come to a finding with any amount of certainty as to who it was who was offering bids in the name of Kashi Nath. Kashi Nath himself was not present and some one else must have been offering bids in his name. The real question for consideration is as to whether this purchase in the name of Kashi Nath was a purchase by Kashi Nath himself or a purchase by Matukdhari in the name of Kashi Nath and, in order to see whether it was a benami purchase, the question of importance is to see the source from where the purchase-money came. It is not the plaintiffs case that Kashi Nath or his cousin, Dwarka, advanced the money to Matukdhari to make the purchase. Their case is that the purchase-money really belonged to Matukdhari. The evidence in the case leaves no doubt that Matukdhari was not in, a position to pay the purchase-money from his own pocket. He was heavily involved in debts and his financial condition was such that he had to accept service under his sister''s husband Kashi Nath Singh, as is shown by the evidence adduced by the plaintiff himself. Dwarka Nath Singh swears that the earnest-money as well as the purchase-money came out of the joint funds of himself and Kashi Nath. Account books have been produced to prove the payment. No doubt the entry as regards the payment was not made in the account book on the date the money was paid; but the explanation offered appears to be satisfactory. Kashi Nath was on that date at Calcutta and it was not known whether he would agree to be a purchaser of the property of his own brother-in-law, and when Kashi Nath returned from Calcutta and expressed his willingness, then the amount was entered in the regular book, it having been previously noted on a purza. 1 see no reason to disbelieve the evidence offered on the side of the defendants to prove that the purchase-money came from Kashi Nath. It is in evidence that the expenses relating to the subsequent proceedings in connection with the appeal to the Commissioner for setting aside the sale and the proceedings relating to the delivery of possession of the property were all paid by Kashi Nath. The expenses were very heavy; Dwarka Nath says, that it may come up to Rs. 25,000, & and it is clear that Matukdhari was not in a position to spend such a large sum of money. The relationship existing between Kashi Nath and Matukdhari is not in itself sufficient to prove the benami nature of the purchase. The whole evidence of fraud adduced on the part of the plaintiff consists of the deposition of their witnesses, Muhammad Yaqub, Bipat Ram, Muhammad Yusuf and Mangal Prasad. In my opinion this evidence is not sufficient to prove a benami purchase by Matukdhari. It has been contended that Kashi Nath hast not been called as a witness in the present case. No doubt that, is so; but Dwarka Nath C had bean called, and it he is believed, and I see no reason to disbelieve him, there a is no reason to hold that Mitukdhari was e the real purchaser.
As regards the allegation of fraud made in the second suit of Basudeo Narain Singh and others, it is enough to say that no case of conspiracy on the part of the other co-sharers has been at all established. It is incredible to believe that Radha Kant him self was in the conspiracy. There is a remarkable omission on the part of the plaintiffs in both the suits to show who was the actual defaulter. This could easily have been established by production of the Collector''s ledger and the challans showing payment by the different co-sharers. We are totally in dark as to whether it was Matukdhari who made the default or some other co-sharers. The amount of arrears was small and it is possible that it was due to some mistake on the part of some of the co-sharers who might have made a deposit of a lesser amount than what was required of them. It has been contended that positive evidence is not necessary to establish fraud and that it can be inferred from circumstances. The utmost that can be said in the present case is that the matter is suspicious; but the specific fraud alleged in either of the plaints has not been established. I am, therefore, of opinion, that neither plaintiff is entitled to succeed on the point of fraud and is not entitled to a re-conveyance of the property.
The last point for consideration is the question as to what passed by the sale. This point is raised in the suit of Radha Kant Lai and not in the second suit. The allegation of the plaintiff, Radha Kant, is that what was sold was ah area of 120 acres and odd or 192 bighas only and not the entire estate bearing Touzi No. 3040. In this connection reference has been made to the several registers kept by the Collector and to the in proceedings relating to the delivery of possession after the confirmation of the sale. There is no doubt that there was a good deal of confusion in the Collector''s registers as regards the real area of the estate Touzi No. 8040. The Revenue Sale Register (Ex. 16) showed the area of the estate sold, as 192 bighas 15 kathas 7 dhurs. The Mahalwar Register, the Mouzawar register and the Intermediate Register, registers A, C and B kept by the Collector have already been dealt with and they show a confusion as regards, the area of as well as the villages comprised in the estate. After the confirmation of the sale Kashi Nath Singh applied for delivery of possession. The order-sheet of the Collector, Exs. N and M1, the report of the Nazir and the notes and orders in the proceeding relating to the delivery of possession (Exs. 10, 101, 102, 103, 104 and 106) the Deputy, Collector''s report (Ex. 105 and the Collector''s judgment (Ex''. 21) with the Superintendent''s report (Ex. 102) show that there was a good deal of confusion as to what was comprised in the estate bearing Touzi No. 3010. Now, in order to find out what was actually sold, one has to refer to the notification of sale. This notification clearly states that the entire estate No. 3040 was put up for sale. The confusion existing in the various registers of the Col lector does not affect the description of the estate as given in the sale notification. It has already been observed above that this estate Touzi No. 3040 was constituted into a separate estate under a Collectorate partition, From the partition papers it appears that an area of 852 bighas and odd contained in Mouzas Bara, Bazida and Pipra was formed into a separate, estate to which was given the Touzi No. 3040. What I was comprised in this estate is dealt with by the Collector in his judgment (Ex. 21) where he refers to the Batwara statement which is marked Ex, P in the present case, and to the Settlement papers, both of which give the area of the estate as 852 bighas comprised in, Bara, Bazida and Pipra. On a reference to the Batwara papers there can be no doubt, that the estate, Touzi No. 3040, consists of 852 bighas which is comprised in the three villages named above. It has not been seriously contended on behalf of the plaintiff that the revenue estate No. 3040 does not consist of 852 bighas but it has been argued on reference to the sale notification and other papers that what was sold was only 120 acres or 192 bighas and not the entire area of 852 bighas. In my opinion there is no justification for this contention. There is no doubt that the entire estate, Touzi No. 3040, was sold and the whole estate consists of 852 bighas lying in the three villages, Bara, Bazida and Pipra. This contention also must fail.
As I have said above, the appellants and some of the respondents in the two appeals have filed petitions of compromise. Some of the parties to the compromise are minors. One of them is Srikant Lal who is one of the appellants in Appeal No. 287. He is re-presented by his elder brother, ShamaKant Lal, who is also an appellant in his own right. Having regard to the findings come to by us, the compromise is clearly for the benefit of the minor, Srikant Lal. There are other minors in Appeal No. 287 but they are not parties to the compromise and no far as they are concerned the appeal will stand dismissed.
In Appeal No. 108 the appellants Nos. 3 and 4 are minors; they are the sons of Rai Bahadur Kashi Nath Singh and Dwarka Singh, who are appellants Nos. 1 and 2, respectively. The compromise is also for their benefit in as much as the sale is confirmed and they get the full price of the property. Mr. Nandkeolyar admits having received the sum of Rs. 38,000 for his clients appellants in Appeal No. 108. In Appeal No. 108 the respondent No. 2, Raj Kumar Prasad Singh, is a minor; he is represented by his father, respondent No. 1, Basdeo Narain Singh. It is clear that the terms of the compromise are for the benefit of this minor in as much as he has got a chance of taking a re-conveyance of the property if the proportionate share of the price is paid by him or his guardian.
We are satisfied that the compromise is for the benefit of the minor a concerned in both the appeals.
As regards the respondents in Appeal No. 287, the appeal will stand dismissed in terms of the petition of compromise. As regards Appeal No. 108, a decree will be drawn up in terms of the petition of compromise so far as the parties to the compromise are concerned and the appeal will be decreed so far as the other respondents see concerned.
Adami, J.
I agree.