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Krishna Chandra Bhowmik v. Pabna Dhana Bhandar Co. Ltd.

Calcutta High Court

May 23, 1928

Judgment

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Factual and Procedural Background

This appeal arises from a suit to set aside a revenue sale of a separate estate account (No. 10/6). The relevant procedural and factual chronology in the opinion is as follows:

A mortgage suit (Suit No. 125 of 1918) was brought by a plaintiff company which obtained a decree; a sale proclamation in execution of that mortgage decree was issued by the Subordinate Judge on 2 October 1923 and the property was purchased by the plaintiff company on 19 November 1923.
Defendants 2–11 (proprietors of separate account No. 10/6) mortgaged their interest to the plaintiff company. Several judgment-debtors sought to set aside that earlier sale.
There were defaults in payment of revenue for the estate: the January kist (due 12 January 1924) showed Rs. 35-2-0 due on the separate account, but the general account for estate No. 10 showed a surplus credit of seven annas on that date; consequently no action was taken then to sell the separate account for arrears arising in January.
For the subsequent quarter, the due date was 28 March 1924. On 27 March 1924 the proprietors of the separate account paid Rs. 20-13-0 for that kist of the separate estate. On 28 March 1924, however, the general account of estate No. 10 showed an arrear of six annas and five pies, making the estate liable to sale.
The Collector issued a notification for sale on 22 May 1924 (stating arrears to the extent of Rs. 35-2-0 — the January amount). The separate estate No. 10/6 was sold on 26 June 1924 and purchased by defendant 1 for Rs. 2,050. The plaintiff company's appeal to the Commissioner under S. 25 of the revenue sale law was rejected and the sale certificate was issued to defendant 1 on 10 December 1924.
In the meantime, applications by judgment-debtors in the mortgage suit were compromised on 16 June 1924; some sales were set aside and some confirmed under that compromise.
The present suit to challenge the revenue sale was filed on 10 July 1925. The Subordinate Judge set aside the sale on several grounds (see below). Defendant 1 appealed; the High Court (B.B. Ghose, J., with Basu, J. concurring) heard the appeal.

Legal Issues Presented

Whether the revenue sale was without jurisdiction because it was held for the March kist of 1924 even though, as found by the Subordinate Judge, no arrear for that kist existed for separate account No. 10/6 (issue under S. 13 of the Revenue Sale Law).
Whether a notice required by S. 5 of Act 11 of 1859 was necessary and, if so, whether failure to serve such notice rendered the sale irregular or void (question whether a mortgage sale proclamation counts as an "attachment by order of any judicial authority").
Whether notices required by S. 6 (including the requirement of 30 clear days) were properly served and whether misnaming the proprietor in the Collector's notification (as Rai Saheb Girish Chandra Bagchi) and alleged failures of service vitiated the sale.
Whether failure to serve notices under S. 7 of Act 11 of 1859 vitiates a revenue sale.
Whether, as an alternative remedy, the purchaser (defendant 1) took the property subject to the plaintiff company's mortgage lien (i.e., validity of plaintiffs' alternative declaratory prayer).

Arguments of the Parties

Appellant's (defendant 1) Arguments

The Subordinate Judge erred in each of the grounds on which he set aside the sale.
The plaintiffs did not specifically raise several of the objections (for example, wrong name of proprietor in the sale notification; non-service on various properties) before the Commissioner in their appeal under S. 25, so those points were not properly before the court on challenge to the sale.
On the key point concerning which separate account could be sold when an estate is in arrear, the appellant contended that the Collector was entitled to go back and find that a particular separate account was in arrear on some previous date in the course of the year and therefore could sell that share (i.e., the Collector could look beyond the kist in respect of which the estate was currently in arrear).

Respondent's (plaintiff company) Arguments

The Subordinate Judge's findings that there was no arrear for the March kist for the separate account No. 10/6 and that the sale was therefore without jurisdiction were correct; the separate share had been paid for March and could not be sold for an earlier kist.
With respect to S. 5, the respondent relied on Board directions (Board's Miscellaneous proceedings) that notice should be given where estates are under attachment by judicial authority; implicitly the respondent treated the mortgage decree/sale proclamation as placing the estate in the same category for the purpose of giving notice.
Respondent (and both parties) admitted there was no date fixed under S. 3 of the Act in the present case, and therefore argued that the statutory notice requirements should be interpreted in light of that fact.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mahomed Jan v. Ganga Bishun Singh	Holds that if no arrear was due for the kist for which an estate was sold, the sale was without jurisdiction.	The court cited this decision as bearing upon the question whether the separate share (No. 10/6) could be sold for the estate arrear of the March kist when that separate share was not in arrear for March; the precedent supported the conclusion that the disputed share could not be sold for the March kist arrear.

Court's Reasoning and Analysis

The court examined each of the grounds relied on by the Subordinate Judge and the parties and applied statutory provisions (principally sections of Act 11 of 1859 and S. 13 of the Revenue Sale Law) and documentary evidence produced at trial.

Service under S. 6 and related procedural objections

The Subordinate Judge had found irregularities in service (including misnaming the proprietor and alleged non-service of notices). The High Court reviewed the documentary returns (Ex. F, Ex. R, Ex. 4(f), Ex. H) and the peon's affidavit and concluded that proper service of notices had been proved. The Court held that, where there is an affidavit or return proving service, the party attacking service must prove lack of service; the plaintiffs did not do so (they did not question the peon on whether he had served the notices). The Court therefore rejected the contention that S. 6 had been contravened. The Court also examined entries on the Rubakari (Ex. 4(e)) showing demands under the Public Demands Recovery Act and found nothing in evidence to show that these entries were made before service or to discredit the returns of service; the Subordinate Judge's inference that the entries proved the May service story false was not supported by proof and was therefore not accepted.

Misnaming the proprietor in the notification

The Collector had given the proprietor's name as it appeared in Register D of the Collector (Rai Saheb Girish Chandra Bagchi) in the sale notification (Ex. G). Though there was evidence that the Rai Saheb had transferred his interest on 14 August 1923, the Court held the Collector was justified in using the name in his register. The plaintiffs failed to show that this naming caused substantive prejudice (for example, inability to pay arrears). The Court therefore held that any irregularity in the proprietor's name did not vitiate the sale.

Effect of non-service of notices under S. 7

The Court analysed S. 7 and concluded that notices under that section are primarily aimed at preventing tenants from paying rent to the defaulting proprietor. Failure to serve such notices may affect third-party rights (e.g., whether an auction purchaser can recover rent), but it does not render the sale void as between the Collector and purchaser. The Court therefore held that non-service under S. 7 does not vitiate the sale.

Applicability of S. 5 where no S. 3 payment date fixed

Section 5 contemplates affixing a notification specifying the amount and the latest date for payment for a period of not less than 15 clear days preceding the date fixed for payment under S. 3. Both parties admitted there was no date fixed under S. 3 in this case (the arrears fell due on specified dates and became liable to sale after sunset of those dates). The Court concluded that, in these factual circumstances, S. 5 was inapplicable because there was no way for the Collector properly to comply with the first part of S. 5 (which requires a fixed payment date as specified by S. 3). On the narrower question whether the paragraph of S. 5 applying to "arrears of estates under attachment by order of any judicial authority" includes sale proclamations under mortgage decrees, the Court held that the phrase "under attachment by order of any judicial authority" cannot be read to include a mere order for sale in execution of a mortgage decree. Although the Board had directed revenue authorities to give notice where mortgage decrees had directed sale, the court would not extend the statutory language; consequently, absence of a S. 5 notice in these circumstances did not amount to contravention of the law.

Critical statutory question under S. 13 — which separate shares may be sold

The court identified S. 13 as the decisive provision. S. 13 requires that, where separate accounts are kept for shares of an estate, the Collector shall in the first place put up to sale only that share or those shares from which, according to the separate accounts, an arrear of revenue may be due. The factual finding relevant here was that although the proprietor of separate account No. 10/6 had been in default as to the January kist, by the March kist that particular separate account had been paid; the estate as a whole, however, was in arrear on 28 March 1924 because of a small general-account deficit (six annas and five pies). The crucial legal question was whether the Collector, when the estate as a whole became liable to sale for the March kist arrear, could select a separate account which had been in arrear on some earlier date (e.g., January) but was not in arrear for the March kist. The Court rejected such a retrospective approach. It reasoned that if the Collector were allowed to go back to prior kists to select separate shares for sale, confusion would result (e.g., different separate accounts being in arrear at different times). The correct construction, the Court held, is that when an estate becomes liable to sale for a particular kist, the Collector should look in his books to see which separate shares were in arrear for that kist; only those shares may be sold. If no separate share is in arrear for that kist, then the entire estate may be sold, but a separate share may not be sold for an arrear of a previous kist. The Court relied on the Board's Manual and the cited precedent (Mahomed Jan v. Ganga Bishun Singh) in support of this conclusion.

Holding and Implications

Appeal dismissed.

Consequences and immediate effects:

The High Court dismissed the appeal brought by defendant 1; accordingly the Subordinate Judge's decree setting aside the revenue sale (on the principal ground that the separate share No. 10/6 could not be sold for the March kist arrear) stands.
The Court held that notices under S. 6 had been properly served and that failures (or alleged failures) under S. 5 or S. 7 did not afford a basis to invalidate the sale in the circumstances of this case; however, on the statutory point under S. 13 the sale was without jurisdiction as to the separate share sold.
The plaintiffs' alternative declaratory prayer (that the purchaser take the property subject to the mortgage lien) was held not to be maintainable in the present form; the Court indicated that the plaintiffs, if they had rights as mortgagees, ought to pursue a properly framed suit to enforce those rights and seek consequential relief.
No costs were awarded to either party in the High Court or the lower court. The court noted that the plaintiffs had unnecessarily prolonged the hearing by raising untenable factual grounds.
Basu, J. agreed with the judgment of B.B. Ghose, J.

This summary is restricted to the content and reasoning expressly stated in the provided opinion; no information beyond the opinion has been added.

Show all summary ...

B.B Ghose, J.:— This is an appeal by defendant: 1 against the judgment and decree of the Sub-ordinate Judge, Second Court Pabna, setting aside a revenue sale. The facts are these: There was an estate touzi 10. Defendants 2 to 11 who are the respondents in this Court opened a separate account No. 10/6. They mortgaged their interest in this separate account along with some other property to the plaintiff company who are respondents along with the other defendant. It is not necessary to state in detail the provisions of the mortgage-deed. A suit was brought on the mortgage by the plaintiff company which was Suit No. 125 of 1918. They obtain a decree and a sale proclamation was issued in execution of their mortgage decree by the Sub-ordinate Judge on 2nd October 1923. The property was sold and purchased by the plaintiff company on 19th November 1923. Bight applications were made by the several judgment-debtors for setting aside the sale. There was default in payment of the revenue of the estate in the separate account No. 10/6. The 12th January 1924 was the last date of payment and the amount due on that date was Rs. 35-2-0. On that date however the general account of estate No. 10 showed that there was an excess credited to the account of the estate to the extent of seven annas. Therefore nothing could be done as to the sale of the separate account for arrears of revenue on account of that default. The next date for payment of revenue for the subsequent quarter was 28th March 1924. On 27th March 1924, that is, on the previous date, the proprietors of the separate account No. 10/6 paid the amount due for that kist for that separate estate which was Rs. 20-13-0. On 28th March, however, there was arrear of revenue due in general account of the estate No. 10 to the extent of six annas and five pies, so there was an arrear of revenue due on account of the estate No. 10 for which the estate was liable to be sold. On 22nd May 1924 the Collector issued a notification for sale of the separate estate No. 10/6 for arrears due to the extent of Rs. 35-2-0 the amount due on it for the January kist and the separate estate was sold on 26th June 1924, and purchased by defendant 1 for Rs. 2,050. There was an application under S. 25 of the revenue sale law to the Commissioner by the plaintiff company. That was rejected. The sale was confirmed and the sale certificate was issued in favour of defendant 1 on 10th December 1924. In the meantime the applications that were made by the judgment-debtors in the mortgage suit for setting aside the sale of their properties in execution of the mortgage decree of the plaintiff was settled on compromise on 16th June 1924. It is not necessary for the present purpose to state the terms of the compromise in detail. It is sufficient to say that the sale was set aside with regard to some of the properties. It was confirmed with regard to some and certain stipulations were entered into between the parties for the debt to be considered to have been paid off in certain circumstances.

2. The present suit was brought on 10th July 1925. The defaulting proprietors were made defendants, but they take no interest in the litigation. The only contending parties are the plaintiff company and defendant 1. The Sub-ordinate Judge has decreed the suit on several grounds. They are as follows:

(1) That there was no arrear due for the March kist of 1921 for this separate account No. 10/6. The sale was, however, effected for the March kist as shown by the Bubakari and the notification of the Collector. Therefore the sale was without jurisdiction;

(2) As the plaintiff had obtained a decree on their mortgage a notice was necessary under the provisions of S. 5, Act 11, 1859: see paragraph commencing as thirdly, and as no such notice was served there was a serious irregularity;

(3) Notice under S. 6 was not served before 30 days of the sale as required by S. 6, Act 11, 1859. That the name of the proprietor was wrongly given as Rai Saheb Girish Chandra Bagchi, whereas it was known at the Collector's office, that he was not the proprietor. This misled the plaintiffs and, therefore, payment was not made. It was also held that service was not effected on the properties;

(4) Notices under S. 7 of the Act were not served. These irregularities caused substantial injury to the plaintiff as the property was sold at an inadequate price.

3. There was another prayer in the plaint that a declaration might be made if the sale is not set aside that defendant 1 has purchased the property subject to the mortgage lien of the plaintiffs. This was an alternative prayer and the Sub-ordinate Judge held that if he had not set aside the sale he would have granted the alternative prayer in respect of the properties of which the sale has been set aside by the compromise dated 16th June 1926. I propose to deal with the points separately. The learned advocate for the appellant has contended that the Sub-ordinate Judge is wrong in his conclusion with regard to every one of the questions. His contention is that with regard to many of the questions under the third head decided by the Sub-ordinate Judge the plaintiffs did not specifically raise the objections in their petition of appeal before the Commissioner; for instance they never urged as a ground before the Commissioner in their appeal that the name of the petitioner has been wrongly given; nor did they allege that notices had not been served on the various properties. What the plaintiffs said in ground No. 4 in their grounds of appeal was that the sale was held less than 30 clear days from the date of affixing the notification under Ss. 6 and 13 of the Act in the office of the Collector, but no other point was taken. There seems to be a good deal of substance in the contention. But apart from this, there is nothing to show that as a matter of fact notices were not served according to law. There is no evidence in support of the allegation of the plaintiffs. On the other hand it will appear from Ex. F and Ex. R, that notices were served on 23rd May 1924. The peon who served the process was called by the plaintiffs to prove service of process in the mortgage suit. But no question was put to him as to whether he had actually served the notices in question or not. It was suggested in the judgment of the Sub-ordinate Judge that it was the duty of defendant 1 to get this fact from the peon. I do not think that the Sub-ordinate Judge was right in so holding. When there was an affidavit of the peon of proper service of notice, the party who impugns the fact ought to have proved that there was no service. The plaintiffs fought shy of the question for the obvious reason that there was no substance in their plea. Therefore it must be taken as a fact that there was service as proved by the various returns Ex. F, Ex. R, Ex. 4(f) and Ex. H, and therefore this objection on the part of the plaintiff is untenable. There is one matter in this connexion which I think I ought to state here. In Ex. 4(e), which is a copy of the Rubakari of the Collector ordering service of notification for sale of the property in question on 26th June 1924, there are some entries at the top showing certain demands on the property for ceases and so forth. These demands were made under the Public Demands Recovery Act for which a certificate was filed on 2nd June 1924. This appears from Ex. 9(b) and Ex. 11(a).

4. The Sub-ordinate Judge argues from this fact that the notification must have been issued subsequent to the 2nd June 1924 and therefore the whole story of service in May must be entirely false. It does not appear, however, from the evidence as to who made the entries on the top of the Rubakari Ex. 4(e) and when. It cannot be conceived for a moment that these entries were made by the Collector who signed the Rubakari on 22nd May 1924, or the Deputy Collector who asked for an order for the notification on 20th May 1924. Who then made the entries and when? The Sub-ordinate Judge assumes that these entries must have been made before the notice was made over to the peon for service. A person was called from the collectorate. No question was put to him about this. The defendant made a prayer to the Sub-ordinate Judge to recall the witness so that questions, might be put to hire as regards this matter. That was refused. The entries appear in the certified copy. Whether they wore made by some person after the certificate was lodged for the purpose of calculating as to how much was due from that particular estate so that the money might be realized from the surplus sale proceeds or for any other purposes, these questions are left wholly uninvestigated, and I cannot agree with the opinion of the Sub-ordinate Judge that purely because there are these entries made on the top of the Rubakari the whole story of due service of process must be disbelieved. So much for the third point as regards service of notice under S. 6. My conclusion is that it has been satisfactorily proved that the notices were properly served and there was no contravention of the provisions of S. 6 of the Act.

5. The fact that the name of the proprietor of this separate estate was given as Rai Saheb Girish Chandra Bagchi appears in Ex. G, the notification for bale. The Sub-ordinate Judge says that the people in the collectorate knew that the interest of Rai Saheb Girish Chandra Bagchi in the property ceased some time in August 1923 and therefore it was a grave irregularity on the part of the Collector to insert the name of the Rai Saheb as the proprietor of the property in the sale notification. It appears from Ex. 10 that a certificate was filed by public demands with regard to this property, and apparently the Rai Saheb was said to be the certificate-debtor (which was contracted into C.D, but wrongly elaborated as Collector's Department). It appears from Order 10, dated 16th April 1924, that the certificate-debtor had transferred his interest to Joy Durga Devi on 14th August 1923. The Sub-ordinate Judge next says that the certificate was issued on 2nd June 1924 in the name of Joy Durga Debi, that is, Ex. 9(b), and therefore it was wrong on the part of the clerk in the Collectorate to insert the name of the Rai Saheb in the notification for sale Ex. G. But it appears that the name of Rai Saheb is registered in Register D of the Collector. This appears from the evidence of witness No. 3 for the defendant, and also in the evidence of defendant's witness No. 1 Atul Chandra Bhattacherjee, who were cross-examined on the question on behalf of the plaintiff. The Collector in giving the name of the owner of an estate which is sought to be sold was quite right in giving the name which was in the D register, and it was not an irregularity to put in his name nor does it appear that the plaintiffs made any grievance of the fact that on that ground they were unable to pay the arrears due. Besides, it seems to me that this irregularity, if there is any, has not been shown to have caused any substantial injury to the plaintiff. This disposes of point No. 3.

6. With regard to the 4th point, assuming that notices under S. 7 of the Act were not served, I do not think that the sale can be vitiated on that account. Notices under S. 7 are only for the purpose of forbidding the tenants from paying their rent to the defaulting proprietor. If such notice is not served and the tenants pay the rent due to the defaulting proprietor, then it would be a question whether the auction-purchaser would again be entitled to recover that rent. It is not a question between the defaulting proprietor and the Collector as to whether notice under S. 7 was served or not. It is unnecessary to elaborate the point as in my opinion it is neither an irregularity nor an illegality which can vitiate a sale if notices under S. 7, Act 11, 1859 are not served.

7. The next question which I take up is question No. 2 as to service of notice under S. 5 of the Act. S. 5 of the Act requires that a notification should be made specifying the amount of the arrear or demand of certain descriptions and the latest date on which payment thereof shall be received for a period not less than 15 clear days preceding the date fixed for payment according to S. 3 of the Act, in certain places and paragraph “thirdly” specifies

arrears of estates under attachment by order of any judicial authority or managed by the Collector in accordance with such order.

8. The learned counsel on both sides admit that there was no date fixed for payment of the arrears according to S. 3 of this Act in this case. What was admitted by both parties before us is this: that the arrears fell due and were payable on 12th January and on 28th March, and if not paid by sunset of those dates the property would be liable to be sold. If that be so I do not see how any notification can be affixed as required by the first part of S. 5 of the Act. In that view it seems to me that section would not be applicable to the particular facts of this case; and the learned advocate for the respondent was unable to explain to us how upon his own statement that there was no date fixed for payment under S. 3 of the Act it was possible for the Collector to affix any notification as directed by S. 5 in this case. Then again as this point has been argued before us by both sides, I think I ought to record my opinion as to the proper interpretation of the paragraph beginning as “thirdly” of that section. It refers to arrears of estates under attachment by order of any judicial authority. The Sub-ordinate Judge has referred to Note 4 under that section in the Board's Manual which runs thus:

In mortgage decrees when the decree contains a, direction to sell, such decrees have the force of an attachment and hence formal attachments are unnecessary; but the revenue Courts get notice of such decrees when the sale proclamations are issued under Section 289 of the CPC, (O. 30, R. 67 of the Code of 1908), and should then consider the estate as being under attachment by judicial authority and issue notices prescribed by this section.

9. The reference is Board's Miscellaneous proceedings of 11th May 1895. It is argued by the learned counsel for the appellant that the words of the Act are “under attachment by order of any judicial authority”. An order for sale or sale proclamation issued under a mortgage-decree is not an order for attachment under judicial authority”, and it is wrong to say that an order for sale has the effect of such attachment, and therefore this paragraph of S. 5 of the Act has no application to a sale proclamation. True, it seems to be somewhat anomalous that a mere attaching creditor would be entitled to have notice served under S. 5, but not a mortgagee who has got a contractual lien on the property. Attachment is only a judicial lien and does not confer any interest on the property; whereas a mortgage creates an interest in the property itself. As I have already said the position seems to be anomalous. But one cannot extend the meaning of the words “under attachment by order of any judicial authority” as meaning an order for sale in execution of a decree on a mortgage. It may be expedient to serve notice under S. 5 when a mortgage has been found to be a good one by judicial decision, and very rightly the Board has directed the revenue authorities to serve notices as prescribed by that section. But it cannot be said that if such notices are not issued, where there is no order of attachment by any judicial authority, the law has been contravened. On this point I am unable to agree with the decision of the Sub-ordinate Judge.

10. Now there remains the first point which to me seems to be the most important of all, and to my mind it is not free from difficulty. The question must be answered with reference to S. 13 of the Revenue Sale Law. That section runs as follows:

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.

11. The learned Sub-ordinate Judge has upon the facts which I have already stated found that there was no arrear due on account of the March kist for this separate account. Therefore the sale for the March kist which the Collector ordered was without jurisdiction there being no arrears left. The learned Sub-ordinate Judge took some trouble in finding that the sale was held for arrears of March kist, and he found that the March kist having been paid by the defaulting proprietor of the separate account No. 10/6 there was no arrear due. There was some argument before us on behalf of the appellant as to whether the sale could be said to have been held on account of the March kist. Reference was made to the sale notification in which it is not stated for which kist the property was going to be sold. That notification was in accordance with the form sanctioned by the Government, and no kist for which the sale is to be held is mentioned in that form. The Sub-ordinate Judge, however, refers to the Rubakari Ex. 4(a) and Ex. S. It is entered there that the sale is to be for the March kist of 1924, and that is also to be found in Ex. F which is described as hukumnama, order of the Collector on the Nazir dated 23rd May 1921. On these documents the Sub-ordinate Judge based his conclusion that the sale was bad for an arrear of revenue for the March kist of 1924, and as there was no arrear of revenue for the March kist of 1921 the sale was without jurisdiction.

12. The question is whether under the circumstances of this case the separate account No. 10/6 could be sold for arrears of revenue which was undoubtedly unpaid on 12th January 1924 for this separate account. As I have already pointed out the property could not have been sold for the arrears in January, because the estate was not liable to be sold on that date there having been an excess payment of 7 annas on account of the estate, although this particular separate account was in default. On the expiry of 28th March 1924, the estate was liable to be sold because there was an arrear of 6 annas 5 pies for the estate. Now when the Collector found that there was an arrear due for the estate and the estate was liable to be sold, what was he next to do? He had to find, when there are separate accounts, which separate account; or which number of them were in arrears. The Collector had to see the shares of the estate from which arrear of revenue was due. Now turning to his books he would find that no arrear was due for March from estate No. 10/6. The question then is: Was he entitled to go back and find that this separate account or any other separate account was in arrear on any pervious date in the course of the year? The learned counsel for the appellant argues that he was so entitled, while the respondent contends that he was not. This seems to be the crucial point in the case, and it seems to me that the respondent's contention should be given effect to. Suppose there were two or more separate accounts, as in this case there are several. No. 10/6 was not in arrears in March. But suppose No. 10/1 was in arrear in March and 10/6 was in arrear in January. Which of the two properties should be sold, or should both be sold? and then, going a step further, could the Collector go beyond that date and find if in September soma other separate share was in arrear? To my mind that would lead to confusion.

13. The simple construction, therefore, should be that when an estate is in, arrear the Collector should look to his books to find which of the separate shares or which number of them was in arrear for that kist. If no separate share is in arrear for that kist the entire estate is liable to be sold, but no separate share can be sold for an arrear of a previous kist. It is further contended on behalf of the respondent that the default in payment of revenue of the share of 10/6 in January was not an arrear of revenue because the estate was not in arrear. If the estate was not in arrear, then the separate account could not be sold on account of the default of the proprietor of the separate account 10/6 for the January kist under S. 13. This has also been explained in R. 90 at p. 281 of the Manual of Revenue and the Patni Sale Laws published under the authority of the Board of Revenue in 1928. Reference has been made on behalf of the respondent to the case of Mahomed Jan v. Ganga Bishun Singh (1). That case has some bearing upon the present case, in which it was held that if no arrear was due for the kist for which an estate was sold, the sale was without jurisdiction. I am of opinion that the disputed share could not be sold for the arrear of the estate for the March kist.

14. Under these circumstances it must be held that on the first ground this appeal fails and should be dismissed. I should add that with reference to the alternative prayer of the plaintiffs that it is not maintainable. If the plaintiffs had any right as mortgagees they might bring a suit for enforcing their right and ask for any consequential relief in a properly framed suit. Their prayer for the declaration they have asked for cannot be maintained, and if I hold that the sale was a good one their prayer for the alternative relief would have been refused. In the result this appeal is dismissed. There will be no costs either in this Court or in the lower Court to either of the parties, as the plaintiffs had unnecessarily prolonged the hearing by raising untenable grounds on the facts. Basu, J.:— I agree.

N.K/D.D

15. Appeal dismissed.