Gunendra Nath Mitra Vs. Satish Chandra
Hui & Ors  INSC 61 (2 December 1952)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 42 1953 SCR 277
Bengal Land Revenue Sales Act (XI of 1859),
6,13,14,37 Estate consisting of separate
shares-Sale of all the shares for arrears due from each-Whether sale of entire
estate-Purchaser's right to annul under-tenures-Form of notification of sale,
Under the Bengal Land Revenue Sales Act (XI
of 1859) if this Collector proposes to sell the entire estate where there art
separate accounts for the several shares which constitute the estate, he has
first to close the separate account or accounts or merge them into one demand and
then he has to issue a notification for the sale of the entire estate under s.
6 of the Act and it is only when the Collector has followed this procedure that
he would have authority to bring to sale the entire estate.
Where a touzi was held in two shares in
respect of which separate accounts were kept in the Collector's records and, as
the shares were in arrears a notification was issued putting up for sale the
two separate units of the estate and showing the separate items of arrears due
from each unit, and both the shares were sold:
Held, that the sale cannot be treated as a
sale of the entire estate even though the two shares constituted the whole
estate, and the purchaser was not entitled to the privileges conferred on the
purchaser of an entire estate by s. 37 of the Bengal Land Revenue Sales Act,
1859. The notification issued under s. 6 of the Act was conclusive as to
whether the subject-matter of the sale was the entire estate or the separate
shares constituting the estate.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 173 of 1951. Appeal from the Judgment and Decree dated February 22, 1949,
of the High Court of Judicature at Calcutta (Blank and Lahiri JJ.) in Appeal
from Original Decree No. 23 of 1944 &rising out of Judgment and Decree dated
August 25, 1943, of the Court of the Subordinate Judge, Zilla Midnapore, in
Title Suit No. 30 of 1941.
Panchanan Ghose (S.N. Mukharjee, with him)
for the appellant.
Sarat Chandra Jana and Bijay Kumar Bhose for
respondent No. 1.
Arun Kumar Dutta for respondents Nos. 2 (b)
278 1952. December2. The Judgment of the
Court was delivered by MAHAJAN J.-The circumstances under which this ,appeal
arises are as follows Touzi No. 2409 of the Midnapore Collectorate consists of
several mouzas including mouza Dingol. The annual land revenue payable in
respect of the entire touzi is Rs. 2,8928-0. This touzi was distributed into
two shares, one being a separate account bearing No. 249/1 and the other being
the residuary share. Both these shares came in course of time to be held by a
single person, viz., Jiban Krishna Ghosh and from him they devolved upon his
two sons, Sudhir Krishna Ghosh and Sunil Krishna Ghosh, defendants 2 and 3 in
the present suit. Both the two accounts were recorded in their names as joint
Under touzi No. 2409 there was a patni which
included mouza Dingol. In the year 1885 Kritibas Hui purchased a share of the
said patni. His father Ramnath Hui purchased some transferable occupancy ryoti
lands under the said patni. These lands are described in schedule " Ka
" of the plaint. Kritibas Hui, while he was a co-sharer patnidar,
purchased some transferable ryoti lands under the patni described in schedule
" Kha " of the plaint. Kritibas Hui died in the year 1906 or 1907 and
his father Ramnath died in the year 1908 or 1909 soon after the death of his
son. On the death of Kritibas Hui, the plaintiff s, four in number, being his
sons and nephews, inherited the patni and the other properties left by him.
Subsequently on the death of Ramnath, the plaintiff s while they were co-sharer
patnidars, inherited the aforesaid transferable occupancy ryoti lands under the
patni purchased by Ramnath.
Occupancy ryoti lands in schedule " Ga
" of the plaint were purchased by the plaintiffs by different kabalas on
different dates, after they had inherited the lands mentioned in schedules
" Ka " and " Kha of the plaint.
Similarly the niskar lands mentioned in
schedule " Gha " of the plaint were purchased by 279 the plaintiffs
after they had taken the inheritance of their father and grandfather. By the
same process they acquired the mokarrari maurashi interest under the Bahali
niskar lands of Sree Ishwar Dwar Basuli Thakurani mentioned in schedule
"Una" annexed to the plaint.
On the 22nd April, 1938, by a registered
kabala the plaintiffs sold their interest in the patni to one Upendranath Pal.
Upendranath Pal thus became the patnidar of the six anna share that was held by
the plaintiffs prior to the year 1938. The rest of the interest in the patni
which had been acquired by Satish Chandra Hui, respondent No. 1, was also sold
to one Gouranga Sundar Das Gupta along with Upendranath Pal. The plaintiffs
thus ceased to have any interest in the patni and remained in possession of the
lands in the status of occupancy ryots or undertenure holders.
When the plaintiffs in the year 1938 sold
their patni interest they were heavily indebted to their landlords Sudhir
Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent. On the 25th
March 1939, the landlords filed a suit claiming a sum of Rs. 16,835-3-6 as
arrears of rent due to them from April, 1935, to March, 1939, in the court of
the subordinate judge of Midnapore against the recorded patnidars (viz., the
plaintiffs) without recognizing the transfer made by them. While this suit was
pending, the landlords failed to pay the March kist of the revenue and cesses
of the touzi in both the accounts, with the result that both the undivided half
shares of the touzi represented by separate account No. 1 and by residuary
account were advertised for sale on 24th June, 1939, under section 6 of the
Bengal Land Revenue Sales Act (XI of 1859). The notice advertising the sale is
Ex. H. It notified sale of the shares in the estate as such and did not state
that the entire estate would be sold. In column of the notification the arrears
due from the two shares were entered separately.
Both these shares were actually sold on the
issue of a single notice and at a 280 single sale and were purchased by
defendent 15 the appellant before us. The sale certificate shows that what was
certified to have been purchased by the appellant was the separate account
share as also the residuary share making up between them the totality of the
On the 9th January, 1940, defendant 15 (the
appellant) in exercise of the rights conferred by section 37 of the Revenue
Sales Act as purchaser of an entire estate in the revenue sale served a notice
on the maha expressing his unequivocal intention to annul and avoid all
under-tenures including patnis and darpatnis. On the same date he is alleged to
have taker possession of some plots of land in possession on under-tenure
holders, encumbrance holders and niskardars.
The revenue sale held on 24th June, 1939, has
lead to a crop of litigations. As already stated, the land lords had sued for
the recovery of the arrears of rent due from the patnidars, viz., the
plaintiffs, before the sale took place.
That suit was decreed on the 14th May, 1940.
An application was made for execution of the decree on 21st June, 1940, by
attachment and sale of certain plots in possession of the judgment-debtors On
behalf of the judgment-creditors it was contended that the entire touzi having
been sold under the revenue sale, the purchaser had become entitled to annul
the tenure under section 37 of the Revenu Sales Act and as a matter of fact had
annulled the same and consequently the tenure itself having expired, section
168-A of the Bengal Tenancy Act did not apply and the decree was executable
against other properties of the judgment-debtors. This contention was upheld by
the subordinate judge but was negatived in appeal by the High Court, and it was
held that the revenue sale was a sale of the shares on the touzi under section
13 of the Revenue Sales A and the purchaser did not acquire any right to and
the tenures, he not being a purchaser of the entire estate as such and
therefore the patni being in existence, the decree-holder could not execute the
decre 281 for arrears of rent of the patni against other properties of the judgment-debtors.
(Vide Satish Chandra Hui v. Sudhir Krishna Ghosh (1), decided in February,
1942, during the pendency of the present suit). The appellant was not a party
to those proceedings.
For the second time the question whether at
the same revenue sale defendant 15 purchased the entire estate or two separate
shares only arose in a case wherein he was impleaded as a party. Bimal Kumar
Hui and another brought a suit sometime in the year 1941 for establishment of
their rent-free title in certain lands and for confirmation of their
possession. The present appellant was impleaded as defendant 2 in the suit as
purchaser of the touzi and as claiming to have annulled the plaintiffs'
Defendant 2 pleaded that an entire touzi had
been purchased by him at the revenue sale and he had thereafter annulled the
interest held by the plaintiffs and they were disentitled to relief as they had
no subsisting interest in the plots of land claimed by them., This plea was
negatived up to the High Court and the plaintiffs' suit was decreed.
(Vide' Gunendranath Mitra v. Bimal Kumar Hui
(2) decided in September, 1948). Harries C. J. and Chakravarti J. in a very
well considered and reasoned judgment reached the conclusion that the revenue
sale in favour of the appellant was a sale of two separate shares under the
provisions of section 13 of Act XI of 1859 and not of the entire estate and
that he -had not acquired the. right to annul the encumbrances under section 37
of the Revenue Sales Act.
The third occasion on which the effect of the
revenue sale held on 24th June, 1939, came up for consideration by the High
Court arose in the suit which has given rise to the present appeal. On the 28th
June, 1941, the plaintiffrespondents, Satish Chandra Hui and others, instituted
title suit No. 30 of 1941 for a declaration of title and confirmation of
possession of certain plots of land in the court of (1) (1942) 46 C.W.N. 540.
(2) (1949) 53 C.W.N. 428.
282 the subordinate judge of Midnapore. There
was the usual preliminary skirmish between the parties antecedent to the suit,
resulting in proceedings under section 144, Criminal Procedure Code. Possession
of the paddy crop growing on a number of plots was taken by the District
Magistrate and eventually under the orders of the High Court the crop was
handed over to defendant 1, an employee of the appellant.
In this suit the present appellant was
impleaded as defendant 15. In the plaint it was averred that the plaintiffs
were in possession of the plots of land mentioned in schedules " Ka",
" Kha" and " Ga " of the plaint as occupancy tenants, that
in respect of the lands mentioned in schedules " Gha " and " Una
they had niskar rights and that as in the revenue sale the appellant did not
purchase the entire estate he was not entitled to annul the patni and the other
tenures or the rent-free grants; and that the plaintiffs having transferred the
patni rights to Upendranath ,Pal which still subsisted, none of the
encumbrances could be said to have been extinguished.
The appellant pleaded that he was the
purchaser of the entire touzi at the revenue sale held on 24th June, 1939, and
had acquired the power to avoid and annual the encumbrances and that by a
notice duly published on the 9th January, 1940, he had annulled all
under-tenures including the patni and that the transfer of the patni to
Upendranath Pal was a benami transaction and that even if it was held genuine
the plaintiffs' rights in the ryoti land had been extinguished as the ryoti
rights had merged with the patni rights under section 22 of the Bengal Tenancy
Act as it was in force before its amendment in 1928 and that by a sale of the
patni to Upendranath Pal. the plaintiffs' rights in those lands stood
transferred to him and they were not entitled to maintain any suit in respect of
The trial judge decreed the suit in respect
of some of the plots detailed at page 144 of the paper,-book. The plaintiffs'
claim in respect of other lands mentioned in schedule " Gg " of the
plaint was dismissed.
283 Plaintiffs were also given a decree for
Rs. 416-4-0 against defendant 1 on account of the paddy of 55-1/2 bighas of the
land out of schedules."Ka ", " Kha " and " Ga ",
to which they had proved their title and of which they were entitled to recover
khas possession. It was held that at the revenue sale the entire touzi did not
pass to the appellant and he had acquired no right to annul or avoid the
under-tenures and encumbrances, that the ryoti holdings of the plaintiffs had
merged in the patni and had passed to, Upendranath Pal on the sale of the patni
to him on 22nd April, 1938, but that Upendranath Pal had resettled these lands
with the plaintiffs and they being settled the ryots of the village had
acquired occupancy rights in these plots.
The plots of land described in schedule Ga
" were held as not assessed to revenue and that being so, -defendant 15
was held not entitled to possession of these niskar lands.
Defendant 15 preferred an appeal to the High
Court against the judgment of the subordinate judge, while the plaintiffs preferred
cross-objections. The appeal and the crossobjections were both dismissed by the
High Court and the findings of the trial judge were maintained. It was
contended before the High Court that the revenue sale, though held in fact
under section 13 of Act XI of 1859, should be deemed to have been held under
section 3 and that the appellant had acquired all the rights of the purchaser
of an entire estate. The High Court negatived this contention and observed that
on a plain reading of section 13 the contention could not be sustained, the
essential conditions for the exercise of jurisdiction under section 13 being
the existence of a separate account or accounts, and the liability of the
entire estate for sale for revenue arrears and that both these conditions
having been fulfilled in this case, the Collector rightly proceeded under
section 13 to sell the shares and that the additional provisions mentioned in
the second paragraph of the section need only be complied with in cases where
there does exist a share from which no arrear is due it was further 37 37 284
hold that though the old occupancy rights of the plaintiffs merged in the patni
and passed to Upendranath Pal after the sale of the patni to him, the action of
Upendranath Pal in realizing the rent from the plaintiffs amounted to a
resettlement and that by his action he had conferred a right of tenancy upon
the plaintiffs who being settled ryots of the village acquired a right of
occupancy in all the lands in respect of which rents were realized.' This
decision was announced by the High Court on the 22nd February,' 1948, and is in
appeal before us on a certificate granted by the High Court on 25th August,
For the fourth time the same question came up
for consideration before the High Court after the decision under appeal and the
view expressed in its earlier judgments by the High Court was followed. [Vide
Gowranga Sundar v. Rakhal Majhi (1).] Mr. Ghosh for the appellant argued two
points before us :
(1) that defendant 1 5 being the purchaser of
an entire estate at a revenue sale had all the rights conferred upon him by
section 37 of the Bengal Land. Revenue Sales Act, and all under-tenures stood
annulled and plaintiffs had no rights in the lands in suit in which they had no
occupancy rights, and (2) that the plaintiffs were not entitled to a decree on
the basis of the resettlement of land, which case was never made out by them,
and which was inconsistent with the pleadings and evidence and that on the
facts proved there could not be any legal inference of resettlement.
In our opinion, neither of these contentions
is well founded. Section 6 of Act XI of 1859 authorizes the Collector after the
latest day of payment fixed in the manner prescribed in section 3 of the Act
has expired, to issue a notification specifying the estates or shares of
estates which have to be sold for recovery of arrears of revenue, and further
authorizes him to put up to public auction on the date notified for sale, the
estates or (1) (1951) 55 C.W.N. 66.
285 shares of estates so specified. The
contents of the notification issued for the sale in question in unambiguous
terms indicate that two separate units of the estate from which separate items
of arrears' were due were notified for sale.
No entry was made in the notification in the
column meant to be filled in when the entire estate is to be put up for sale.
In the face of these facts it was conceded by Mr. Ghosh that the sale in fact
took place as provided for in section 13 of Act XI of 1859 and what was
actually put up for sale were two separate shares in the estate which made up
the totality of the estate. The learned counsel, however, contended that the
sale should be deemed to have been of an entire estate, as both the shares sold
constituted the totality of the estate and because section 13 could have had no
application to a case wherein both the accounts were in default, the section
having application only in cases where there at least exists a share that is
not in default and which needs protection against the default of the, other
co-sharers. This argument, though attractive, is fallacious. To hold that a
sale, which in fact was of two different accounts, is to be deemed to be a sale
of the entire estate would be tantamount to converting a fact into a fiction by
a judicial verdict. The notification under section 6 issued by the Collector
must, in our opinion, be considered as conclusive on the point as to what the
subject-matter of the sale was, i.e., whether what was sold was the entire
estate or two shares. The appellant is really on the horns of a dilemma. If the
contention of his learned counsel that the sale by the Collector of shares of
the estate was not authorized by section 13 is taken seriously, the sale would
then be a nullity as under none of the provisions in the Revenue Sales Act such
a sale could be held in the manner adopted and the appellant would have no
title under it whatsoever; if such a sale is authorized by section 13 of the
Act, then it gives him no rights to annul the undertenures. In either event, be
cannot resist the plaintiffs' suit. In our judgment, it has been rightly held
286 in the courts below that the appellant at this revenue sale did not become
the purchaser of the entire touzi as such and did not become entitled to the
privileges conferred on such a purchaser by the provisions of section 37 of Act
XI of 1859.
The contention of Mr. Ghosh that the
provisions of section 13 are not attracted to a case where all the shares in an
estate are in default and that in that event the only authority that the
Collector has is to put up for auction the entire estate is again, in our
opinion, not well founded.
Before the Revenue Sales Act was passed in
1869 estates were being put up for sale for arrears irrespective of the
question whether the majority of the cosharers had deposited their shares of
the revenue or whether the amount due was large or small. The cosharers who had
paid their shares within the due date were affected seriously by such sales.
Provision was therefore made in 1859 for affording
protection to the cosharers who were willing to pay and had' paid their share
of the revenue. On the application of the parties the Collector began to keep a
record of separate accounts in the names of the different cosharers. The
liability of the entire estate for the total amount of revenue was not in any
way affected by this arrangement.
'The only privilege given was that if the
cosharers had got separate accounts opened in the collectorate the revenue
apportioned for the particular cosharers would be receivable by the Collector.
At the initial stage the shares belonging to such of the cosharers who duly
paid the amount allotted in their share would not be put up to sale even if
there be a default on the part of one or more of the other cosharers.
Only the defaulting separate accounts would
be put up to sale in the first instance. If the Collector found that the total
amount of the revenue in arrears was not realizable from such sale, he would
thereupon stop the sale of the defaulting share and give notice that the entire
estate would be put up to sale. The paramount consideration governing the whole
of this Act is to preserve intact the 287 ultimate security of government for
the revenue demand against the estate. By permitting the opening of separate
accounts the Act seeks to give recorded sharers of a joint estate an easy means
of protecting their shares from sale forthe default of their cosharers, but
there is no ultimate protection if the government demand is still unsatisfied.
Even in cases where all the shares are in default, this protection cannot be
denied because the amount of arrears due from them may be different sums of
Sections 13 and 14 of the Act on which the
argument rests are in these terms:
13." Whenever the Collector shall have
ordered a separate account or accounts to be kept for one or more shares if the
estate shall become liable 'to sale, for arrears of revenue, the Collector or
other officer as aforesaid in the first place shall put up, to sale only, that
share or those shares of the estate from which,, according to the separate
accounts, an arrear of revenue may be due.
In all such cases notice of the intention of
excluding the share or shares from which no arrear is due shall be given in the
advertisement of sale prescribed in section 6 of this Act. The share or shares
sold, together with the share or shares excluded from the sale, shall continue
to constitute one integral estate, the share or shares sold being charged with
the separate portion, or the aggregate of the several separate portions, of
jama assigned thereto."
14. If in any case of a sale held according
to the provisions of the last preceding section the highest offer for the share
exposed to sale shall not equal the amount of arrear due thereupon to the date
of sale, the collector or other officer as aforesaid shall stop the sale, and
shall declare that the entire estate will be put up to sale for arrears of
revenue at a future date, unless the other recorded sharer or sharers or one or
more of them, shall within ten days purchase the share in arrear by paying to
the Provincial Government the whole arrear due from such share.
288 If such purchase be completed, the
Collector or other officer as aforesaid shall give such certificate and
delivery of possession as are provided or in sections 28 and 29 of this Act to
the purchaser or purchasers, who shall have the same rights as if the share bad
been purchased by him or them at the sale.
If no such purchase be made within ten days.
as aforesaid I the entire estate shall be sold, after notification for such
period and publication in such manner as is prescribed in section 6 of this
Act." The concluding words of section 14 furnish a key to the construction
of these sections. When a contingency arises in a case, where two separate
accounts have been kept, to sell an entire estate, a fresh notification has to
issue in accordance with the provisions of section 6 of the Act notifying that
the entire estate is for sale. In the absence of such a notification a sale of
an entire estate is not authorised in such a case. Section 13 thus empowers the
Collector where separate accounts are kept, to sell the shares in default as
such, there being no scope for the operation of paragraph 2 of the section
where all-the sharers' are in default. There is nothing in that section which
disentitles the Collector where two separate accounts have been kept and both
of them are in default, to notify for sale the separate accounts for recovery
of arrears due from each of them separately, or to bring several defaulting
shares to sale all at once without following the procedure laid down in section
13. If the Collector proposes to sell the entire estate, where there are
several accounts, the first step he has to take is to close the separate
account or accounts or merge them into one demand and the next step would be to
issue a notification for sale of the entire estate under section 6 and it is
only when the Collector has followed this procedure that he would have
authority to bring to sale the entire estate and not otherwise . In this case
no such thing was done. The demands against the two shares were not merged into
one item and the entire estate could not 280 be sold for two separate demands.
It could only be notified for sale for recovery of a single sum of arrears due
from the entire estate. In our judgment, therefore, it is not right to hold as
was contended by Mr. Ghosh that a sale for arrears of revenue is not a sale
under section 13 unless there is a share from which no arrear is due and unless
a notice of the intention of excluding that share is given in the advertisement
of sale under section 6 of the Act that that share is excluded from sale.
The second point of Mr. Ghosh that no
inference should have been drawn in this case that the lands in suit were
resettled by the purchaser of the patni on the plaintiffs is also without
force. The facts from which an inference of resettlement has been drawn by the
courts below were alleged in the plaint and on those facts such an inference could
be justifiably raised. The plaintiffs had been paying rent to the purchaser of
the patni on the land in their possession and this was accepted by the
purchaser as if they were his tenants. In those circumstances the absence of a
'specific pleading as to resettlement could not in any way be said to prejudice
defendant 15's case. Upendranath Pal having treated the plaintiffs as tenants,
defendant 15 has no right to question their interest and it must 'be held that
their claim was rightly decreed in the courts below to the extent that they
were able to establish it.
The appeal before us was limited to the plots
of land which were not covered by the sanads or regarding which plaintiffs hid
not been able to prove that they were occupancy tenants. In view of our
findings, however, the appeal even as regards those plots has no merits.
For the reasons given above the appeal fails
and is dismissed with costs.
Agent for the appellant: Sukumar Ghose.
Agent for respondents Nos. 1, 2 (b) & 15;