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  • provisions of the Bengal Land Revenue Sales Act, XI of 1859. The provisions of the Assam Land and Revenue Regulation
  • Indian Limitation Act itself. Art. 12, cl. (c)
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
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  • provisions of the Bengal Land Revenue Sales Act, XI of 1859. The provisions of the Assam Land and Revenue Regulation
  • Indian Limitation Act itself. Art. 12, cl. (c)
Smart Summary

Factual and Procedural Background

This appeal was brought by two of the Defendants against the judgment and decree of the Subordinate Judge, First Court, Sylhet, dated 14 August 1937. The underlying suit was instituted by nine Plaintiffs seeking (a) to set aside a revenue sale held on 23 January 1934 or, alternatively, (b) a reconveyance of the Plaintiffs' shares from Defendants Nos. 6 and 7. The Subordinate Judge granted the first relief (set aside the sale).

The property in question was Mehal Syed Muhamed Nazir (Touzi No. 54721/1 of the Sylhet Collectorate), a permanently settled estate with annual revenue of Rs. 3,152-3 as. Local rate payable was Rs. 754-11-7 pies. Separate accounts had been opened under sec. 65 of the Assam Land and Revenue Regulation: thirteen accounts before September 1933 (seven for aliquot shares, six for specific lands) plus a residuary, and another account (No. 14) opened in November 1933.

Two separate accounts (Nos. 2 and 6) were in arrear for the May kist, 1933. At the attempted sale on 15 September 1933 no bids were offered for those accounts; the Deputy Commissioner accordingly stopped the sale and in terms of sec. 70(2) directed that the entire estate be sold on a future sale date (to be fixed for the September kist of 1933). No other proprietors paid within ten days as provided by sec. 76. The sale was later fixed for 23 January 1934 and on that day the entire estate was put up and purchased by Defendants Nos. 3 and 4 for Rs. 2,300.

After confirmation (8 November 1934), Defendants Nos. 3 and 4 executed a deed of release (17 January 1935) in favour of Defendant No. 7, acknowledging that he had a 12 annas share, and subsequently the shares passed so that Defendants Nos. 6 and 7 held the estate in equal shares by the date of suit (the suit was filed 25 September 1935).

The Subordinate Judge set aside the sale as irregular on the ground that the Deputy Commissioner had lumped arrears of the September kist together with the arrears of the May kist in the sale statement and proclamation, which, in the Subordinate Judge’s view, could not be done. This court's opinion considers that conclusion and other alleged irregularities and ultimately holds the sale to be valid.

Legal Issues Presented

  1. Whether the Deputy Commissioner had jurisdiction to sell the entire estate on 23 January 1934 when the sale statement and advertisement showed arrears in a manner alleged to be inconsistent with the law (i.e., whether lumping arrears for different kists rendered the sale invalid).
  2. Whether acceptance of earnest money four to five hours after the bidding was a material irregularity entitling the Plaintiffs to annul the sale.
  3. Whether the sums of Rs. 36 (revenue) and Rs. 9 (local rate) paid after 15 September 1933 but before the advertisement were not credited and, if so, whether that constituted a material irregularity invalidating the sale.
  4. Whether the purchasers (Defendants Nos. 3 and 4, and later Nos. 6 and 7) were benamdars acting for the Sultanashi Zemindars (Defendants Nos. 1, 2 and others), as alleged by the Plaintiffs, and whether that would entitle the Plaintiffs to reconveyance of their shares.
  5. Whether the price fetched at the revenue sale (Rs. 2,300) was inadequate and whether inadequacy, combined with any irregularity, required reversal of the sale.

Arguments of the Parties

Plaintiffs' Arguments (as advanced before the courts)

  • The Sultanashi Zemindars (Defendants Nos. 1, 2 and others) intentionally defaulted in payment so that they could purchase in benami at the revenue sale and thereby rid the lands of encumbrances; they induced Plaintiffs' officers not to bid by promises and allurements.
  • Defendants Nos. 3 and 4 were benamdars (purchasers in name only) for the Sultanashi Zemindars; the Plaintiffs should therefore obtain reconveyance of their shares.
  • The sale was irregular because (i) the sale statement/advertisement did not conform to law and the Deputy Commissioner lacked jurisdiction to sell the entire estate as he did; (ii) acceptance of earnest money several hours after the bid was a material irregularity; and (iii) payments of Rs. 36 and Rs. 9 after 15 September 1933 were not credited.
  • The sale price (Rs. 2,300) was grossly inadequate given evidence of much larger annual returns and demands made by Defendant No. 7 in related dealings.

Defendants' Position and Evidence (as presented in the opinion)

  • Evidence indicated that Defendants Nos. 3 and 4 were speculators who bid and were short of funds; they managed to deposit earnest money and then obtained financing from Defendant No. 7, who advanced funds in return for a three-fourths share; deeds (Ex. B, II-33 and others) support the arrangement.
  • There was no persuasive evidence that Defendants Nos. 3, 4 and 7 were benamdars for the Sultanashi Zemindars; the oral evidence for benami was disbelieved on credibility grounds.
  • Where procedural irregularities existed (for example, late deposit of earnest money), the Defendants argued that no substantial injury to Plaintiffs resulted and that statutory provisions (sec. 82) limited Civil Court powers to annul sales absent proven substantial injury and compliance with procedural prerequisites for challenging sales.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kumar Narendra Nath Roy v. The Midnapur Zemindary Co. [F.A. Nos. 203 and 204 of 1937] Examined provisions of the Bengal Land Revenue Sales Act, XI of 1859 (analogous to the Assam Regulation) regarding procedure when separate accounts are in arrear and when the entire estate may be put up for sale. Used to support the proposition that the Deputy Commissioner could declare and later put up the entire estate for sale when a separate account is in default and no proprietor pays within the period allowed; the Assam Regulation is similar and in some ways more protective of the Crown, so the reasoning applies.
Sheik Haji Mutasaddi Mian v. Muhamed Idris Held under Act XI of 1859 that arrears of different kists may, in certain circumstances, be aggregated for purposes of determining whether the entire estate may be sold; authority for including arrears of the next kist where net balance shows arrear. Applied to hold that the Deputy Commissioner could include arrears of the next kist (September kist) along with bakea arrears (May kist) provided the advertisement covered sale for that later kist as well; supported the conclusion that lumping arrears did not per se constitute an irregularity invalidating the sale.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps, addressing credibility of evidence, alleged procedural irregularities, jurisdictional questions under the Assam Regulation, and limitation/technical prerequisites for challenging a revenue sale.

1. Benami allegation and credibility assessment.

  • The court reviewed oral testimony offered for the Plaintiffs (Hari Mohan Das, Girish Chandra Pal, Rai Mohan, Kamini Kumar, the Nazir, and others). It found key parts of the Plaintiffs' story (that Plaintiffs' officers were asked not to bid because the Sultanashi Zemindars would buy in benami and then reconvey) inherently implausible on credibility grounds — for example, it was improbable that Harimohan would disobey explicit instructions and put up actual funds without any written undertaking or reference to his principal.
  • The Nazir's evidence was discounted as unreliable and influenced by Plaintiff No. 1. Other witnesses either did not corroborate necessary details or their evidence did not establish that the purchasers (Defs. 3, 4 and 7) were benamdars for the Sultanashi Zemindars.
  • The defendants' oral evidence and documentary evidence (e.g., deed of release Ex. B, II-33) supported the finding that Defendants Nos. 3 and 4 purchased on their own account, were short of funds, and later obtained financing from Defendant No. 7 who took a substantial share in return.
  • Conclusion: Defendants Nos. 3, 4 and 7 were not benamdars for the Sultanashi Zemindars; Plaintiffs were not entitled to reconveyance from them.

2. Adequacy of sale price.

  • The court accepted that the sale price (Rs. 2,300) was inadequate relative to evidence of the estate's income and other dealings indicating higher value (e.g., two annas share yielding Rs. 800–900 per year; Defendant No. 7 demanding large selamis), but observed that the Subordinate Judge's reasons for inadequacy were not all sound (for example, using assessed revenue/local rate as an index of market value was rejected).
  • The court nevertheless treated inadequacy as a factor that would require sale reversal only if material irregularity also existed producing substantial injury.

3. Alleged non-crediting of Rs. 36 and Rs. 9.

  • The sale statement for the intended sale date (Ex. 21) showed reduced arrears consistent with those payments (arrears reduced by a little more than Rs. 36 and Rs. 9 respectively). There was no evidence by the Respondents to show arrears were less than as shown. The court therefore overruled this contention.

4. Delay in depositing earnest money.

  • Section 77 requires immediate deposit of 25% of bid (earnest money) or the property is to be forthwith put up again. The evidence indicated bidding for this estate finished about 2 p.m., other sales finished about 5 p.m., and earnest money was deposited at about 7 p.m. The provision was not strictly observed.
  • However, the court found no evidence that the delayed deposit caused substantial injury to the Plaintiffs (e.g., by enabling Defendants to hold the sale and then fail to pay, thereby preventing other bidders who left from participating in a resale). In light of sec. 82 (which permits annulment only when irregularity results in substantial injury) the court did not treat late deposit as a ground for annulment.

5. Jurisdiction to sell the entire estate and the inclusion/lumping of arrears.

  • The court analyzed sec. 70(2), sec. 72, sec. 76 and related provisions of the Assam Land and Revenue Regulation as to procedure when a separate account is in arrear. It held: upon opening separate accounts liability remains joint and several but the separate account in default must first be put up for sale; if no bids or insufficient bids are offered, the Deputy Commissioner may direct sale of the entire estate after giving other proprietors ten days under sec. 76 to pay up.
  • The Deputy Commissioner had expressly directed on 15 September 1933 that the entire estate would be put to sale at a future date; no proprietor paid within the period fixed; accordingly he had jurisdiction to put the entire estate to sale on 23 January 1934.
  • The court rejected the contention that each separate account had to be advertised and put up separately again for arrears of the September kist; it relied on analogous reasoning in Kumar Narendra Nath Roy and on principles applied in Sheik Haji Mutasaddi Mian v. Muhamed Idris to permit aggregation/merging of arrears where the net balance at the kist date justified sale and the advertisement covered the kist in question.
  • The court further held that the Deputy Commissioner has discretion under sec. 72 as to what particulars to include in the sale statement, and showing total arrears up to the sale date did not violate the Regulation. Even if including September kist arrears with May kist arrears were an irregularity, Plaintiffs failed two further critical requirements (see below).

6. Procedural prerequisites, specification of grounds and substantial injury.

  • Section 82 permits a Civil Court to annul a sale only where an irregularity has caused substantial injury. Sub‑section (2) further requires that grounds relied upon be specified in the application made under sec. 79 to the Commissioner. The court found the Plaintiffs did not specify the particular point about inclusion/lumping of arrears in their application under sec. 79 (grounds cited did not cover it).
  • The court rejected an argument that specification of particular grounds is required only if the suit is filed after one year; it held the limitation period for setting aside revenue sales is governed by the Indian Limitation Act (Art. 12, cl. (c)) prescribing one year from confirmation, and that the specification requirement applies even where suit is within a year.
  • Separately, Plaintiffs failed to prove resulting (substantial) injury from the alleged irregularity — the right to pay and save the estate had been lost earlier (on 26 September 1933) in terms of sec. 76; the court disagreed with the Subordinate Judge's view that excluding September kist arrears from the statement would have enabled Plaintiffs to save the estate on 23 January 1934.

7. Final conclusions on disputed points.

  • Given the credibility findings, documentary evidence (deed of release), statutory interpretation and the failure to prove substantial injury or to specify the irregularity in the application under sec. 79, the court concluded the sale was valid.
  • The court expressly left open the question whether Defendants Nos. 3, 4, 6 and 7 or any of them could be considered defaulters under the Assam Regulation, stating it was not relevant to the suit.

Holding and Implications

Holding:

The appeal is allowed and the sale of 23 January 1934 is held to be valid. The decree of the Subordinate Judge setting aside the sale is discharged.

Implications and immediate consequences:

  • The Plaintiffs are not entitled to reconveyance from Defendants Nos. 3, 4, 6 or 7 on the benami theory as the purchasers were found to have purchased for their own account.
  • Although the court acknowledged the sale price was inadequate, that inadequacy alone, in the absence of a proven material irregularity causing substantial injury (and in the absence of required specification before the Commissioner), did not justify annulling the sale.
  • Costs: The Plaintiffs (Respondents in the appeal) must pay Defendants Nos. 6 and 7 their costs of this Court and of the lower Court. One set of costs here and of the Court below is to be divided equally between Defendants Nos. 6 and 7.
  • The court did not make a separate order on cross‑objections because it discharged the lower court's decree; no order was made as to costs on the cross‑objections.

Broader precedent or law‑making effect:

The opinion applies and discusses existing statutory provisions (Assam Land and Revenue Regulation provisions and the Indian Limitation Act) and refers to prior case law for interpretive guidance. It does not purport to create a new legal principle beyond application of those authorities; the court confined itself to interpreting the statutory scheme and applying established principles to the facts of this case.

    Saiyed Abdul Jabbar v. Jitendra Kumar Pal

    The Judgment of the Court was as follows:—

    This appeal by two of the Defendants is directed against the judgment and decree of the Subordinate Judge, First Court, Sylhet, dated the 14th August, 1937. The suit was instituted by nine Plaintiffs to set aside a revenue sale held on the 23rd January, 1934, in the alternative for a reconveyance of the Plaintiffs' share from Defendants Nos. 6 and 7. The learned Subordinate Judge has granted the first prayer.

    Mehal Syed Muhamed Nazir, hisya taluk Md. Batir, bearing Touzi No. 54721/1 of the Sylhet Collectorate, is a permanently settled estate with a total annual revenue of Rs. 3,152-3 as. The total local rate payable at the material time was Rs. 754-11-7 pies. The proprietors of the said mehal had opened separate accounts under the provisions of sec. 65 of the Assam Land and Revenue Regulation (I of 1886). Before September, 1933, thirteen separate accounts had been opened, the first seven in respect of aliquot shares of the mehal and the remaining six in respect of specific lands of the same. With the residuary there were thus fourteen separate accounts. Another separate account (No. 14) was opened in November, 1933. The revenue and local rates were payable in two kists, eleven annas in May and the remaining five annas in September of each year.

    Separate accounts Nos. 2 and 6, as also other separate accounts, were in arrear for the May kist, 1933. The remaining separate accounts, except Nos. 2 and 6, cleared up the arrears by payment before the 12th September, 1933, the date fixed for sale for the arrears of May kist, but separate accounts Nos. 2 and 6 were still in default on that date. In the sale statement (Ex. 23, II-I) prepared by the Deputy Commissioner under sec. 72(1) of the Regulation, the arrears stood thus:

    No. of separate account. Arrears of Revenue. Arrears of Local Rate. Total No. 2 … … Rs. 634-8-2 Rs. 151-9-6 Rs. 786-1-8 No. 6 … … Rs. 102-14-7 Rs. 24-7-11 Rs. 127-6-6 Total … … Rs. 737-6-9 Rs. 176-1-5 Rs. 903-8-2

    In the course of the sale, the said two separate accounts were reached on the 15th September, 1933. No bids were offered for them with the result that the Deputy Commissioner stopped the sale and directed under sec. 70(2) the sale of the entire estate at the sale date to be fixed for the sale for the arrears of the September kist of 1933. Within ten days of this direction none of the proprietors of the remaining separate accounts came forward to pay up the arrears due for the said separate accounts Nos. 2 and 6 as provided for by sec. 76. The 23rd January, 1934, was later on fixed as the sale date for the arrears of the September kist of 1933. On that day the entire estate, Taluk Muhamed Batir, was put up to sale and was purchased by Defendants Nos. 3 and 4 for Rs. 2,300. On the 17th January, 1935, after the confirmation of the sale (which was on the 8th November, 1934) Defendants Nos. 3 and 4 executed a deed of release in favour of Defendant No. 7, Syed Abdul Jabbar, in which they admitted that the latter had 12 annas share in the estate purchased by them, as he had contributed 75 per cent of the price. (Ex. B, II-33) Defendants Nos. 3 and 4 on the same date sold the remaining four annas share to Defendant No. 6, Rabindralal Das Chowdhury, son of Defendant No. 5 (Ex. H, 11-35). Defendant No. 7 on the next day (18th January, 1935) sold 4 annas out of his 12 annas share to Defendant No. 6 (Ex. I, 11-37). The position then at the date of the suit, which was filed on the 25th September, 1935, was that the entire estate so purchased by Defendants Nos. 3 and 4 had passed to Defendants Nos. 6 and 7, who held it in equal shares. The learned Subordinate Judge has held the sale of the 23rd January, 1934, to be an irregular one. In the sale statement and in the proclamation of sale the arrears of the entire estate for the September kist, 1933, were also shown and lumped together with the arrears of May kist of 1933, due in respect of separate accounts Nos. 2 and 6. This according to him could not be done by the Deputy Commissioner. This is the only irregularity he found. He held that the estate was worth much more than Rs. 2,300, (about Rs. 32,000), and that the irregularity on which he proceeded in decreeing the suit had been mentioned by the Plaintiffs in their memorandum of appeal to the Commissioner filed under the sec. 79. Before us Mr. Bose, appearing for the Plaintiffs Respondents besides supporting the reasons of the Subordinate Judge, has placed three other points, which according to him vitiate the questioned sale. The points accordingly are:—

    (i) that the Deputy Commissioner had no jurisdiction to sell the entire estate on the 23rd January, 1934, in any event the sale statement not being in accordance with law, the sale was an irregular one.

    (ii) that the acceptance of the earnest money four or five hours after the bid was a material irregularity.

    (iii) that the sum of rupees thirty six and rupees nine paid after the 15th September, 1933, and before the advertisement on account of revenue and local rates respectively were not credited. That was also a material irregularity.

    He has further contended that even if the sale cannot be reversed, the Plaintiffs are on the facts proved entitled to a conveyance of their respective shares on payment of proportionate prices. We will first deal with this point and the question whether the sale has fetched an adequate price. We may at once say that we agree with learned Subordinate Judge on both these, points.

    The Plaintiffs' case is that Defendants Nos. 1, 2 and 8 to 23, for brevity's sake called the Sultanashi Zemindars, were men of influence but some of them, especially Defendant No. 9, were involved in debts and some others had created unprofitable tenures. They intentionally defaulted to pay their share of revenue with a view to purchase in benami at the revenue sale, so that the encumbrances which they had created may be got rid of. On the date of the sale two of them, Defendants Nos. 1 and 2, and their naib, Musrabulla, dissuaded the officer of Plaintiff No. 1 from offering bids by holding out allurements, and later on the agents of the Sultanashi Zemindars after the sale, at which they purchased the property in the benami of Defendants Nos. 3 and 4, induced the Plaintiffs by false promises not to deposit the arrears and the compensation within 30 days of the sale under sec. 78A. This case has been developed in the evidence of Harimohan Dass, naib of Plaintiff No. 1, and Girish Chandra Pal, another officer of Plaintiff No. 1. The case made in the lower Court that there was a concluded contract between the Plaintiffs and the Sultanashi Zemindars by which the latter promised to convey to the former their respective shares for proportionate prices was not pressed before us by the Respondents' Advocate and so need not be considered.

    On the case so presented, the first question of importance is whether Defendants Nos. 3 and 4 were benamdars, and if so, whether they were benamdars for the Sultanashi Zemindars. The evidence in support of benami consists of the evidence of Hari Mohan Das, Girish Chandra Pal, Surendra Lal Das, the Nazir and treasurer of the Sub-Divisional Officer, Rai Mohan Das, an officer of Plaintiff No. 2, Satish Chandra Bhattacharya, an officer of Defendant No. 9, Abdul Karim, an officer of Defendant No. 42 and Kamini Kumar Chakravarty, an officer of the Plaintiffs Nos. 3 to 9.

    The evidence given by Hari Mohan, Girish Chandra, Rai Mohan and Kamini Kumar is of the same type. They say that at the date of sale Defendants Nos. 1, 2 and their naib Musrabulla told them that they would purchase at a small price in benami and asked the Plaintiffs' men not to compete with them as that would only raise the bid and that they would return the Plaintiffs' share if they were successful. Hari Mohan who had Rs. 5,000 with him and had definite instructions from his master to bid for the property up to Rs. 20,000 agreed to the proposal and offered no bids with the result that the Sultanashi Zemindars purchased the property in the name of Defendant No. 4, their servant. It is hard to believe that Harimohan would break his master's definite instructions, without having obtained something in writing. It is also hard to believe that Harimohan would take this great responsibility without any reference to his master. We cannot accordingly believe this story.

    The evidence given by the Nazir is that two of the Sultanashi Zemindars asked him for a loan to pay the earnest money and were with Defendant No. 4 when the earnest money was actually deposited. The last statement by itself is not of much value on the question of benami. The Nazir was besides under the influence of Plaintiff No. 1 and the learned Judge did not consider his evidence to be reliable. The evidence given by Mr. Nosib Ali Mozumdar, Extra, Assistant Commissioner, does not push the case of the Plaintiffs far enough. He cannot say whether the Defendant No. 1, whose tenant he was, approached him for an advance before or after the sale. Satish Chandra Bhattacharya was an officer of the Sultanashi Zemindars. He deposed for the Plaintiffs as he says, with the permission of Defendant No. 9, one of the Sultanashi Zemindars. That shows that some of the Sultanashi Zemindars are siding with the Plaintiff's. His evidence is that Defendant No. 1 paid Rs. 200 towards the earnest money. The evidence of Abdul Karim is that Defendants Nos. 1 and 2 paid the balance of the price on the 15th day of the sale. The evidence, however, establishes the fact that the purchasers at the revenue sale, whoever they be, were short of money. The earnest money was Rs. 575 (one-fourth of Rs. 2,300). They had to run from place to place and the Plaintiffs' case is that the money could not be collected before 8 p.m, that is, five hours' time had been taken to find the money. If an understanding was arrived at with Plaintiffs' officers just before the sale, as alleged by them, we fail to see why the Sultanashi Zemindars had to run from place to place for raising money to meet the deficit, and did not apply to Harimohan who had with him, as is the Plaintiffs' evidence, Rs. 5,000, or why Harimohan did not offer to accommodate them. We cannot also believe the statement that Defendants Nos. 1 and 2 paid any portion of the earnest money or deposited the balance on the 15th day of the sale. It seems to us that Defendants Nos. 3 and 4 were of that class of speculators who usually attend revenue sales. They offered the bid, but were short of money. Any how they managed to deposit the earnest money and for the balance of seventy-five per cent had to find another person. They approached Defendant No. 7, a wealthy Zemindar, who advanced the same on the understanding that he would be given three-fourths share. This is the effect of the oral evidence adduced by the Defendants which evidence is supported by the deed of release Ex. B, II-33. The remaining one-fourth share which Defendants Nos. 3 and 4 still had were disposed of by them at some profit to Defendant 6. There is no evidence to show that Defendant No. 7 only lent his name for the Sultanashi Zemindars. We hold that Defendants Nos. 3, 4 and 7 purchased for their own benefit. None of them were the benawdars of any of the Sultanashi Zemindars. The Plaintiffs are not entitled to any reconveyance from them.

    We hold that the price fetched at the revenue sale was not adequate. The reasons given by the learned Judge are, however, not sound. The amount of revenue or local rate, which is levied on an acreage basis, is no index of value. But there is evidence that the income of the estate was considerable. The two annas share, which Plaintilf No. 1 had, gave him a return of Rs. 800 to Rs. 900 a year. Prosanna, the manager of Plaintiff No. 1, mentioned that figure at page 71, 1.10 but no suggestion was made in cross-examination that the profits were not so much. The dealings of Defendant No. 7 also point out that the property was worth much more than Rs. 2,300. He demanded large selamis (Rs. 7,000 to Rs. 8,000) for settlement of fractional parts of the estate (p. 100, 1.20 and p. 134, 1.1 to 20). Tire sale will have to be reversed if material irregularity is established. This leads us to the question of material irregularities. We will now deal with them.

    We do not see any substance in the contention that Rs. 36 paid as revenue and Rs. 9 as local rate after the 15th September were not credited by the Deputy Commissioner. The arrears of revenue for the May kist of 1933, for separate account Nos. 2 and 6 was Rs. 737-6-9 and of the local rate, Rs. 176-1-5 as shown in Ex. 23 II-I), the sale statement prepared for the sale fixed for the 12th September, 1933. In the sale statement, Ex. 21 (II-5), prepared for the sale fixed for the 23rd January, 1934, the arrears of revenue and local rates for the May kist of 1933 are shown as Rs. 699-8-3 and Rs. 165-15-1 respectively. The arrears were thus reduced by a little more than Rs. 36 and Rs. 9 respectively. There is no evidence on the side of the Respondents to show that the arrears were less than what has been shown in Ex. 21. We accordingly overrule this point urged by the Respondents.

    The next point is with regard to the alleged delay in depositing the earnest money. The evidence leads us to the conclusion that the bidding in respect of this estate, Taluk Muhamed Batir, was over at about 2 P.M, but other sales were taken up thereafter and those sales were finished at 5 P.M The Nazir who was conducting the sale was also the treasurer. It is not likely that he would have or could have accepted the earnest monies before 5 p.m But the fact remains that the earnest money was deposited at about 7 p.m The question is whether this constituted an irregularity for which the sale is to be set aside. Sec. 77 provides that the person declared to be the purchaser shall be required to deposit immediately 25 per cent of his bid and in default of such deposit the property is to be forthwith put up to sale again. This provision was not strictly observed, but there is no evidence that the neglect of this provision has caused the Plaintiffs Respondents substantial injury. There possibly may have been a case of injury if Defendants Nos. 3 and 4 were given time and they ultimately failed to pay in the earnest money and a re-sale was held after the intending bidders had left. The sale cannot, in our judgment, be accordingly annulled in view of the provisions of the first paragraph of sec. 82.

    It now remains to consider the two parts of the argument involved in the first point raised by Mr. Bose.

    The first branch of the argument as put forward by him is as follows; The Deputy Commissioner could have put up to sale on the 23rd January, 1934, the entire estate for the arrears of separate accounts Nos. 2 and 6 for the May kist of 1933, i.e, the 11 annas kist, as no bids had been offered when those two separate accounts had been put up to sale on the 15th September, 1933, and as the Deputy Commissioner in terms of sec. 70, sub-sec. (2), had directed the sale of the entire estate and no other proprietor had paid the same within the time limited by sec. 76. But the Deputy Commissioner, says lie, had not in fact put up the entire estate to sale for those arrears. He had put up for sale the entire estate for the arrears of the September kist of 1933; i.e, the five annas kist. In support of his contention Mr. Bose has relied upon the heading of the sale statement (Ex. 21, II-5) and of the advertisement in the Gazette, which is an exact copy of the same. The heading runs as follows:—“Instalment on account of which arrear is due—five anna kist of 1339.” Then follow in a tabular form the details of a large number of estates which were in arrears including the estate, Taluk Muhamed Batir. Against Taluk Muhamed Batir, however, two sums are shown as arrears namely Rs. 985-1-0 as current arrears of revenue and Rs. 235-13-8 as current arrears of local rate, that is, arrears for the September kist, 1933 (5 anna kist of 1339) and Rs. 699-8-3 as bakea arrears of revenue and Rs. 165-15-1 as bakea arrears of local rate, that is arrears for the May kist of 1933 (11 annas kist of 1339). The heading therefore was amplified in relation to this estate by the above details contained in the body of the statement. The sale statement and the advertisement, taken as a whole and read fairly, indicate that the sale of this estate was advertised not only for the arrears of the September kist but also for those of the preceding May kist. It is admitted in the plaint that at the time when the Deputy Commissioner made the order on the 15th September, 1933, under sec. 70, sub-sec. (2), he declared that the entire estate would be put up to sale at the sale date to be fixed for the arrears of the 5 anna kist of 1339 (=September kist, 1933) and in the sale statement Ex. 21, and in the notification that was in fact done. No doubt the arrears of the September kist of 1933 were added to the arrears of the May kist, 1933, but that raises a separate question which we deal with later on.

    On the opening of a separate account under sec. 65, the liability of all the proprietors still continues to be joint and several. But the separate account in default must first be put up to sale and not the entire estate for such default. If no bids are offered or the bids offered are insufficient to wipe off those arrears, the entire estate is to be put to sale, but after giving an opportunity to the other proprietors to pay up the same within 10 days. As soon as the above-mentioned circumstances combine with the non-payment of the arrears in terms of sec. 76, the Deputy Commissioner is empowered to put up the entire estate to sale and he cannot again be required to advertise for sale the separate accounts separately and to put them up separately for the default of the next kist. In the case of Kumar Narendra Nath Roy v. The Midnapur Zemindary Co. [F.A Nos. 203 and 204 of 1937] the matter has been examined in detail in reference to the provisions of the Bengal Land Revenue Sales Act, XI of 1859. The provisions of the Assam Land and Revenue Regulation are similar. The last-mentioned Regulation, however, is more solicitous for the rights of the Crown, for unlike Act XI of 1859 it continues the joint and several liability of the proprietors even after the opening of separate accounts. It further holds out a greater inducement to the other proprietors to pay up the arrears of a separate account and so purchase it, when for the separate account in arrears either no bids or insufficient bids had been offered, for the proprietor who comes forward and pays up the arrears, acquires the separate account free from encumbrances. We cannot accordingly agree with Mr. Boses's argument that for the arrears of the September kist of 1933, each separate account had to be advertised separately for the September kist, 1933, and had to be put up to sale separately on the 23rd January, 1934, and the whole gamut of procedure as laid down in sec. 70, sub-sec. (2), read with sec. 76, had to be followed again before the entire estate could be put to sale. We accordingly overrule his contention that the Deputy Commissioner had no jurisdiction to sell the entire estate as he did, on the 23rd January, 1934. The default of separate accounts Nos. 2 and 6 gave the Deputy Commissioner power to declare that the entire estate would be put to sale at a future date and the default of the other proprietors in not paying up those arrears within the time limited by sec. 76 gave the Deputy Commissioner jurisdiction to put into effect what he had previously declared. The entire estate could, however, be put up to sale, if and only if, on merging the accounts of the separate accounts into one account, an arrear appeared. The net balance has to be struck up to the kist date for which he intends to put it up for sale. He would have jurisdiction to include the arrears of the next kist, provided that the advertisement be for the sale of that kist also. This has been laid down in Sheik Haji Mutasaddi Mian v. Muhamed Idris . That was a case under Act XI of 1859, but the principles laid down there apply to this case with the same force. The next question is whether lumping the arrears for the May kist of 1933 with the arrears for the September kist of 1933 constitutes an irregularity. In our judgment it does not. This is not contrary to any provision of the Regulation. The Deputy Commissioner is required under sec. 72 to prepare a sale statement. He must include therein the following particulars, namely (1) description of the property, (2) its annual revenue and (3) time and place of the sale. What other particulars are to be included is left to his discretion. He has therefore the discretion to show in the statement the total arrears due up to that time.

    Assuming that the inclusion of the arrears of the September kist in the sale statement amounts to an irregularity, the Plaintiffs have to face two points. They did not specify this irregularity in their application made before the Commissioner under sec. 79. We do not think that grounds Nos. C and N mentioned at pages 12 and 13 of Part II or the corresponding grounds in the other application cover the point. Sec. 82 in effect lays down that a Civil Court can annul a sale on the ground of irregularity resulting in substantial injury. The section however is worded in a negative form. Sub-sec. (2) puts further limitations on the powers of the Civil Court. The suit for annulment must be brought within an year of the finality of the questioned sale and (2) the irregularity complained of must be specified in the application made to the Commissioner under sec. 79. We cannot accept Mr. Bose's construction of the second sub-section to the effect that the particular ground must be specified in the application to the Commissioner only in the case where the suit is instituted beyond a year of the finality of the sale but need not be Specified where it is instituted within a year. For this contention he puts emphasis on the word “or” used in that sub-section. That contention would have had some force if a suit to annul a revenue sale could have been instituted beyond a year. Apart from the provision contained in the last portion of that sub-section which in our opinion prescribes the period of limitation, the period of limitation to set aside a revenue sale has been prescribed by the Indian Limitation Act itself. Art. 12, cl. (c) of the first Schedule prescribes one year's limitation from the date of the confirmation of the sale.

    The second obstacle in the path of the Plaintiffs is that they have not been able to prove resulting injury. We cannot agree with the Subordinate Judge when he says that if the arrears for the September kist had not been included in the sale statement and in the advertisement, the Plaintiffs could have saved the estate from sale on the 23rd January, 1934, by paying up the arrears for the May kist only. At that date that right was gone. It was gone on the 26th September, 1933. That right could have been exercised only in terms of sec. 76.

    We do not decide the question, and keep it open as to whether Defendants Nos. 3, 4, 6 and 7 or any one of them can be considered defaulters within the meaning of the Assam Regulation, as that question is not relevant to this suit.

    We accordingly hold that the sale is a valid sale. The appeal is accordingly allowed. The Plaintiffs Respondents must pay Defendants Nos. 6 and 7 their costs of this Court and of the lower Court. We allow one set of costs here and of the Court below to be divided equally between them.

    As we have discharged the decree of the lower Court it is not necessary to make a separate order on the cross-objections.

    No order is made as to costs on the cross-objections.

    P.C

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