Srimati Tara Soondari Debia and Others vs The Maharajah of Burdwan

Fitzgerald, J. 1. This case comes before us ex parte. The suit was to set aside a sale of a putni talook which took place by auction for non-payment of rent, the allegation of the Appellant, who was the Plaintiff in the suit, being that the sale was illegal in consequence of non-observance of Regulation VIII of 1819. By that regulation it is provided with reference to cases where sales are to take place in certain districts and under certain circumstances for non-payment of rent, that "on the first day of Bysakh of the following year from that of which the rent is due the zemindar shall present a petition to the civil court of the district, and a similar one to the collector, containing a specification of any balances that may be due to him on account of the expired year from all or any talookdars or other holders of an interest of the nature described in the preceding clause of this section." Having presented this petition both to the civil court and to the collector, "the same shall then be stuck up in some conspicuous part of the kucheree, with a notice that, if the amounts claimed be not paid before the 1st of Jyte following, the tenures of the defaulters will on that day be sold by public sale in liquidation." Then it provides that "A similar notice shall be stuck up at the sudder kucheree of the zemindar himself, and a copy or extract of such part of the notice as may apply to the individual case shall be by him sent to be similarly published at the kucheree, or at the principal town or village upon the land of the defaulter." It is admitted that there was a compliance with the two earlier provisions, but the question arises whether a copy or extract of the notice applying to the individual case was sent by the zemindar to be published "at the kucheree, or at the principal town or village upon the land of the defaulter." The regulation goes on : - "The zemindar shall be exclusively answerable for the observation of the forms above prescribed, and the notice required to be sent into the mofussil shall be served by a single peon, who shall bring back the receipt of the defaulter or of his manager for the same; or in the event of inability to procure this, the signatures of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot. If it shall appear from the tenor of the receipt or attestation in question that the notice has been published at any time previous to the 15th of the month of Bysakh, it shall be a sufficient warrant for the sale to proceed upon the day appointed. In S case the people of the village should object or refuse to sign their names in attestation, the peon shall go to the kucheree of the nearest moonsiff, or, if there should be no moonsiff, to the nearest thanna, and there make voluntary oath of the same having been duly published - certificate to which effect shall be signed and sealed by the said officers and delivered to the peon." That is a very important regulation, and no doubt it was enacted for a certain and defined policy, and ought as a rule to be strictly observed. Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar who institutes the proceeding exclusively responsible for its regularity. Their Lordships do not, however, intend at all to controvert a decision to which their attention was called, of Sir Barnes Peacock, when he filled the office of Chief Justice of the High Court of Bengal, to the effect that if the notice itself has been duly published, if it is not matter of controversy, if the fact was ascertained that it was published, then one would not regard any objection either to the form of the receipt or the absence of the receipt itself. That decision was alluded to in a case before this tribunal, in which their Lordships say they are disposed to agree with the judgment of the High Court confined as it is to cases where there is proof that the notice was duly served. That, again, is where there is no controversy as to the fact of the service. It seems to their Lordships that the object of the Regulation was that due service or publication should not be left matter of controversy. The evidence should be secured immediately afterwards, and exist in writing, and be referred to by the proper officer as part of the foundation of the sale. Accordingly if, immediately upon posting the notice, the peon posting it can find the defaulter or his manager, he is bound to ask for a receipt from the defaulter or his manager, signed under his hand, and if he gets such a receipt there is an end to all question as to the service. If he does not find the defaulter or his manager, or if that person will not sign a receipt, then he is to call in three substantial people of the village to attest the fact, which will be apparent to their eyes, that the notices in question have been published. If they object, as very likely villagers would object, to be parties to the proceedings for the enforcement of a sale, then he is obliged to go to the nearest moonsiff, and make a voluntary oath of the fact of service, which act is immediately recorded, and forms the foundation upon which the officer afterwards proceeds in carrying out his sale. Thus the evidence that the notice has been given is immediately preserved and the fact is not left to be matter of controversy afterwards. 2. The issue in this case is as to whether the provisions of Regulation VIII of 1819 have been complied with. The case before us differs from that before the Chief Justice of Bengal, and equally from that case which was before this tribunal, in this, that the fact of service here is matter of controversy. We should be obliged to assume, in order to arrive at a conclusion one way or the other, either that there was a conspiracy to cheat and deceive upon the part of the Plaintiff Charoo and the two chowkidars who are represented to have assisted in the fraud, or that there was a conspiracy on the part of the peon sent to effect this publication, who, having, it is said, neglected his duty, conspired afterwards with a confederate to make a false statement and forge a receipt. 3. The Judge in the Primary Court delivered his judgment in favour of the Appellant. He had the advantage of seeing and hearing the witnesses, and he has expressed his decision in vigorous language. But there was an appeal on the question of fact, and upon that question of fact two Judges of the High Court have concurred in thinking that the Judge of the Court below was wrong, and have come to the conclusion that the Plaintiff and his witnesses have told the truth. It shews that not alone is the fact of publication in controversy, but that the matter is so involved that it is difficult to come to a safe conclusion upon it. Their Lordships do not propose to say upon this controverted question of publication on which side the weight of evidence lies. 4. Their Lordships will humbly advise Her Majesty to affirm the decision of the High Court, and upon this ground : The doubt or difficulty in the case is one that would not have existed save by the neglect of those representing the Maharajah. There is no evidence save the statement of the peon Khetu that the notice was ever entrusted to him; but supposing it was entrusted to him I for publication, his duty, and that of the officers of the Maharajah, would have been clear and plain. Ho should have ascertained when he went to make the service that the person whom he represents to be Charoo, to whom he says ho delivered the notice, was the defaulter, or the agent of the defaulter. He should then have obtained his receipt, a receipt proper in form. If he could not obtain it he should have followed the course prescribed by the Regulation, and should at once have returned the documents to the proper officer of the Maharajah. It would then have been the duty of that officer to examine the receipt and see that it was in all respects complete and regular as part of the foundation of the title afterwards to be given by sale. Their Lordships have before them a copy of the supposed receipt, which appears to be enveloped in mystery from the time it was alleged to have been signed. The peon gives no history of it. What did he do with it? To whom did he give it? Where has it been? All that is left in obscurity, and no confirmatory proof is produced from amongst the servants of the Maharajah that the peon, having effected what he alleged to be service, brought in this receipt with him, and filed it in the collectorate or with the proper officer of the district. What is the document itself when we come to look at it? The professed signatures are at the top. The first is that of Brojo Mohun Banerjee. That purports to be the name, not quite the correct name, of the registered proprietor of the talook, who has been dead many years, and if this had been brought to and examined by the servants of the Maharajah they must have seen that the dead man could not have signed it; there is no doubt that they knew that this registered proprietor was not alive. The next signature is that of Bedoznath Banerjee, who is put down as the karpurdaz, meaning the kar-purdaz of the dead man, Brojo Mohun Banerjee. This turns out to be a non-existing individual; there is no such person. Then we come to the attesting witnesses at the foot, and they are Goburdhun Chowkidar and Gopal Chowkidar, residents of Salmula. The inference from that would be that they were the chowkidars of Salmula. If there are such persons in existence, there are no such chowkidars at Salmula, and neither of the chowkidars of Salmula have been produced on either one side or the other. This document or receipt so produced by the peon is by no means a compliance with the provision of Regulation VIII Their Lordships think that the absence of that care and attention which ought to have been shewn with reference to this document, and the absence of any contemporaneous inquiry whether there had or had not been a publication of this notice, as required by the Regulation, have created the very difficulty which the Regulation was intended to prevent; and as the Regulation makes the zemindar exclusively answerable for the observance of its provisions, their Lordships are of opinion that the issue as to the Regulation ought to be found in favour of the Respondents; and will therefore humbly report to Her Majesty, as their opinion, that the decree of the High Court of Judicature ought to be affirmed and this appeal dismissed.