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Bibi Sakina Khatoon v. Khirod Chandra Manna

Calcutta High Court

Aug 11, 1941

Judgment

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Factual and Procedural Background

This appeal arises from a suit to set aside the sale of a khas mahal estate in the Sunder-bans for default in payment of arrears of revenue. The Appellant is the defendant purchaser at the sale. The learned Munsif of Diamond Harbour originally tried the suit and dismissed it; that judgment was reversed on appeal by the Additional District Judge of 24-Parganas, giving rise to the present appeal to this Court.

The property sold comprised two separate shares (one account numbered 2960/7 representing a five gandas share, and the residuary account numbered 2960 representing a two annas share) in F. Plot, 4th Part of Lot Sunderban, Mouza Gobindapur, P.S. Mathurapur. Both separate accounts fell into arrears (the five gandas share for two kists; the residuary share for one kist). The defaulting shares were advertised and sold together on 24 September 1934 and purchased by the Appellant for Rs. 60. A sale-certificate was issued on 3 July 1935 under section 28 of Act XI of 1859, and possession was delivered on 26 August 1935.

The Plaintiffs (recorded proprietors of the residuary share) challenged the sale on grounds including: (a) illegality of a joint sale of two separate accounts contrary to section 13 of the Act, (b) impropriety/defects in the notice of sale under section 6, and (c) alleged suppression/non-service of sale processes. The defaulting proprietors had appealed to the Commissioner of the Division, who recommended annulment of the sale, but the Board of Revenue refused that recommendation. The Plaintiffs then instituted the present suit.

Both Courts below found against the Plaintiffs on the allegation of non-service/suppression of sale processes. The appeal therefore focused on two issues: the propriety of the notice under section 6 and the legality of the joint sale under section 13.

Legal Issues Presented

Whether the notice of sale issued under section 6 of Act XI of 1859 was legally sufficient and free from defects that would vitiate the sale.
Whether a joint sale of two or more separate accounts (shares) of an estate is lawful under the scheme of Act XI of 1859, particularly section 13, or whether separate sales must be held.

Arguments of the Parties

Plaintiffs / Respondents (as presented in the opinion)

The sale was illegal because it was a joint sale of two separate shares and therefore contrary to section 13 of the Act.
The notice of sale under section 6 was defective: it omitted material particulars (such as the name of the mouza and the sadar jama of the whole estate, and separate disclosure of kists/dates for each separate account) and included inaccurate particulars (an allegedly wrong specification of the kists in default).
It was alleged that sale processes had been suppressed (though both Courts below found against the Plaintiffs on this point).
The Plaintiffs relied on a certified copy of the notice (Exhibit 7) to show an inconsistent footnote suggesting earlier arrears (1931), which they pressed as indicative of misleading particulars.

Appellant / Defendant Purchaser (as presented in the opinion)

Contended that the Plaintiff's objections to the notice under section 6 were not well-founded and that the particulars given were sufficient to inform prospective purchasers of what was to be sold.
Asserted that the defect(s) in the printed form (including an illustrative footnote) could not have misled bidders and did not vitiate the notice.
Defended the joint sale: relied on (i) a Board of Revenue administrative rule (Note 8 to section 13 in the Government Manual) directing that all shares of separate accounts in arrears be advertised and put up together, and (ii) the language in the latter part of section 13 referring to the "aggregate" of separate portions of jama, which was argued to contemplate joint sales.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raveneshwar Prasad v. Baijnath Goenka	Explains that a notice of sale must enable likely purchasers to know exactly what is to be sold to ensure reasonable competition; used as the test for sufficiency of notice under section 6.	The Court adopted the principle that sufficiency of a notice under section 6 depends on whether it is definite enough to inform prospective purchasers; applied this flexible, fact-dependent test to hold the notice adequate.
Ismail Khan v. Abdul Aziz (Full Bench; observations of Ghose, J.)	Judicial observations on what constitutes sufficient specification in a notice of sale under the statute.	The Court cited these observations to support the view that no rigid formula exists and sufficiency depends on the facts of each case, reinforcing the judgment that the notice here was adequate.
Amirunessa v. The Secretary of State	Authority that when selling an estate or a share it may be unnecessary or impossible to specify the mouza(s) of which the estate/share is composed.	Applied to hold that omission of the mouza and sadar jama of the whole estate in the notice was not material or fatal in the circumstances of this case.
Ram Narain Koer v. Mahabir Pershad Singh	Similar authority that specifying mouza(s) may not be necessary when selling a share rather than the whole estate.	Relied upon to support the conclusion that omission of mouza particulars did not vitiate the notice.
Indra Mani Dasya v. Priyanath Chackrabarty	Interprets "estate" in section 13 to mean the entire estate out of which the separate share is carved.	Used to explain that separate shares cannot be sold merely because one share is in default; the entire estate must be liable to sale for a share to be sold under section 13.
Krishna Chandra Bhowmik v. Pabna Dhana Bhandar Company, Limited (Privy Council)	Definitive statement that to justify sale of a separate share: (a) the estate must be liable to sale for arrears, and (b) an arrear must be due from the share according to the separate account.	The Court relied on this decision to emphasise that section 13 requires both conditions and to underline that separate shares remain part of an integral estate for ultimate revenue security.
Manmatha Nath v. Ananga Kumar (Mitter, J.)	Holds that liability for sale of a separate account is separated from liability for sale of other separate accounts or the residuary share.	Quoted to support the proposition that separate accounts create distinct liabilities and that joint sale would defeat that statutory separation.
Nirmal Nalini v. Rani Harsamukhi	Interpreted section 31: rejected contention that surplus sale-proceeds of a share could be applied to liquidation of all arrears due from the entire estate; also held that Collector may, in some circumstances, make a declaration under section 14 after a failed sale of one separate account.	The Court accepted the interpretation limiting application of surplus proceeds to the particular share and discussed the Nirmal Nalini decision at length, distinguishing its facts and holding that it does not justify joint sales or undermine separate sales required by section 13.

Court's Reasoning and Analysis

The Court analyzed the matter in two stages: (A) sufficiency and effect of alleged defects in the notice under section 6, and (B) legality of a joint sale of separate accounts under section 13 and related provisions.

A. Notice under Section 6

The Court acknowledged that strict compliance is required for notifications of sale under the statute, but stressed that the Act itself prescribes only that the notice should specify "the estates or shares of estates which will be sold" (sec. 6) and, where separate accounts exist, the share(s) to be excluded (sec. 13). There is no exhaustive statutory list of particulars; sufficiency depends on whether prospective purchasers can identify what is being sold and thereby ensure reasonable competition (drawing from Raveneshwar Prasad and Ismail Khan).
Board of Revenue rules and prescribed forms exist as administrative directions to avoid incomplete specification, but they are not statutory and do not have the force to render a notice void simply because a prescribed form item is omitted.
Specific objections raised by Plaintiffs were considered: omission of mouza and sadar jama of whole estate; failure to show separate kists/dates for each defaulting account; an inconsistent footnote suggesting a much earlier date (1931) in the printed form.
The Court held omission of mouza and sadar jama of the whole estate was not material because the shares to be sold were separately and correctly specified and the sadar jamas of those shares were given. Authorities (Amirunessa; Ram Narain Koer) support that it may be unnecessary or impossible to give mouza particulars in sales of shares.
Regarding kists/dates, although only one latest date (28 June 1934) appeared for both accounts, the notice also specified a Bengali month-end corresponding to 14 June 1934 as the last day, and the Court found this information sufficient to show the arrears were recent and that bidders could not be prejudiced.
The inconsistent footnote in the certified copy (Exhibit 7) indicating dates from 1931 was treated as an illustrative entry in the printed form, not part of the operative notice; the discrepancy was so glaring and clearly inconsistent with the rest of the notice that no reasonable bidder would be misled. The original notice (called for by the Munsif) apparently did not support the Plaintiffs' position.
Conclusion on notice: all objections to the notice under section 6 failed; the notice was sufficiently definite and not vitiated by the alleged defects.

B. Legality of Joint Sale of Separate Accounts

The Court engaged in a detailed statutory interpretation exercise of section 13 and related provisions (secs. 10, 11, 14, 21, 31, 37, and the scheme of the Act as a whole) to decide whether joint sales are permissible.

Section 13 permits sale of separate shares only where separate accounts have been opened and where the estate as a whole is liable to sale; a separate share cannot be sold merely because that share is in default if the estate itself is not liable. Indra Mani Dasya and Krishna Chandra Bhowmik were cited to underline these dual conditions.
The opening of separate accounts creates "separate liabilities" (secs. 10 & 11) and separates the liability to be put up to sale for each share; Manmatha Nath was used to show that liability for sale of a separate account is distinct from that of other accounts.
The Court identified several reasons why joint sales would be inconsistent with the Act's scheme (enumerated in the opinion as (i)–(vi)):
1. A joint sale would defeat the object of creating separate liabilities (it would make one defaulting share answer for another).
2. It would require appropriation of purchase money of one share to discharge arrears of another, contrary to the Court's interpretation of section 31 and the Nirmal Nalini decision which held that surplus proceeds of a sold share must be held for that share's proprietor and cannot be applied to other shares or the general account.
3. Section 14 contemplates that if a share's sale does not realise its arrears "thereupon" the Collector shall declare the entire estate to be sold; the word "thereupon" naturally refers to the particular share, suggesting separate sales as the envisaged procedure.
4. Joint sales could unfairly prejudice other recorded sharers who, under sec. 14, have a right to avert a sale of the entire estate by paying the arrears of the share first put up for sale; joining shares would increase the burden and could defeat that right.
5. Joint sales could be unjust between defaulting sharers (e.g., where one share is subject to an incumbrance and another is not) because sec. 37 frees only an entire estate from incumbrances on sale, not individual shares.
6. The Act gives no guidance on how to determine which and how many defaulting shares should be included in a joint sale; if joint sales had been intended, the statute would more likely have supplied directions.
The Court addressed the Appellant's two main arguments for permitting joint sale:
- The Board of Revenue rule (Note 8 to section 13) directing joint advertisement and sale was held to be an administrative, non-statutory instruction and cannot override the statutory construction required by the Act.
- The use of the word "aggregate" in section 13 was interpreted by the Court as apt to describe the situation where several separate accounts are purchased by the same person (thus merging in the purchaser's hands), and not necessarily as proof that the Act contemplates joint sales in the first place.
The Court examined the Nirmal Nalini decision (which had held that the Collector might, after a failed sale of one separate account, make a declaration under section 14 to sell the entire estate without first putting up the other defaulting shares that had been advertised). The Court distinguished that decision: it was premised on facts showing that even if other sales were held they would not have prevented a declaration under section 14 because the estate as a whole would still be in arrear. Therefore Nirmal Nalini did not justify or establish joint sales in general.
The Court concluded that on the statute's scheme and applying the cited authorities, joint sales of two or more separate accounts are contrary to law and cannot be supported.

Holding and Implications

Holding: The Court held that the sale in question was void and must be set aside. The appeal is dismissed and the suit is decreed. Costs were awarded in both Courts below; no order for costs was made in this Court. The Court directed that a copy of the judgment be forwarded to the Board of Revenue.

Implications:

Direct effect on the parties: The joint sale to the Appellant was declared void and the Plaintiffs' suit to set aside the sale was successful; the appeal by the purchaser was dismissed. Costs were granted against the Appellant in the Courts below but not in this Court.
On legal principle: The Court ruled that under Act XI of 1859, the statutory scheme (sections 10, 11, 13, 14, 31, and related provisions) does not permit a joint sale of two or more separate accounts; separate sales of separate accounts are required in general. The Board of Revenue's administrative rule recommending joint sales has no statutory force if inconsistent with the statute.
The Court did not purport to lay down a new expansive precedent beyond the statutory interpretation reached; it applied and reconciled existing decisions to conclude that joint sales are contrary to law in the circumstances described.

A copy of the judgment was directed to be forwarded to the Board of Revenue. The opinion records agreement by Edgley, J., and concludes with the formal dismissal of the appeal and decree in favour of the Plaintiffs.

Show all summary ...

The Judgment of the Court was as follows:

Biswas, J.:— This appeal arises out of a suit for setting aside the sale of a khas mahal estate in the Sunder-bans for default in payment of arrears of revenue, and the Appellant is the Defendant purchaser at such sale. The learned Munsif of Diamond Harbour who tried the suit in the first instance dismissed it, but that judgment was reversed on appeal by the learned Additional District Judge of 24-Parganas. Hence the present appeal.

2. The property sold is described as F. Plot, 4th Part of Lot Sunderban, Mouza Gobindapur, P.S Mathurapur, and it was held by a number of co-sharer lessees. At the instance of the co-sharers, 12 separate accounts were opened in respect of the mahal under sec. 10 of Act XI of 1859 according to their respective shares, one of which was numbered 2960/7, the residuary share being recorded as number 2960. The former represented a five gandas share, and the latter a two annas share. The Plaintiffs are interested in the residuary mahal. Both these separate accounts fell into arrears, mahal 2960/7 to the extent of Rs. 17 odd on account of the fourth kist of 1933-34 and the first kist of 1934-35, and the residuary mahal to the extent of Es. 37 odd for the first kist of 1934-35 only. The defaulting shares were accordingly advertised for sale under the provisions of the Act, and sold on the 24th September, 1934, when they were purchased by the present Appellant for a sum of Rs. 60. A sale-certificate was in due course issued to the purchaser on the 3rd July, 1935, under sec. 28, and delivery of possession given to him on the 26th August following.

3. The sale was a joint sale of the two shares, and it is impeached on this ground as illegal, being contrary to the provisions of sec. 13. A further point is also taken that the notice of sale under sec. 6 had not been properly drawn up. It is also alleged that the sale processes had been suppressed. The defaulting proprietors had appealed to the Commissioner of the Division on these grounds. The Commissioner recommended to the Board of Revenue that the sale should be annulled, but the Board refused to accept the recommendation. This led the Plaintiffs to commence the present suit.

4. Both Courts found against the Plaintiffs as regards the alleged non-service of sale processes, and the only questions left to be considered in the appeal, therefore, are, first, as to the propriety of the notice under sec. 6, and secondly, as to the legality of the joint sale. On both these points, the Courts below differed, the learned Munsif holding against the Plaintiffs and the learned District Judge deciding in their favour.

5. We think the Appellant is right in his contention that the Plaintiffs' objections to the notice under sec. 6 of the Act are not at all well-founded. The alleged defects which are supposed to vitiate the notice are on the one hand that it does not mention all the necessary particulars, and on the other, that some of the particulars it mentions are inaccurate and misleading. As regards the errors of omission, the complaint is that it does not specify the name of the mouza or the sadar jama of the whole estate, and further, that the kists in arrear and the latest dates of payment are not separately shown for the two defaulting separate accounts. As regards the inaccurate particulars, it is alleged that the notice actually gives a wrong statement of the kists in default.

6. Mr. Chakravartti for the Plaintiffs Respondents did not himself press the first category of objections before us. As an essential condition of the validity of a sale for arrears of revenue under Act XI of 1859, the Court will doubtless insist on strict compliance with the requirements of the law regarding the issue of the notification of sale, but as to what particulars a notice under sec. 6 must contain, the Act gives no direction beyond providing in the section itself that it shall specify “the estates or shares of estates which will be sold,” and then, in sec. 13, that where the Collector has opened a separate account or accounts, the share or shares to be excluded from the sale shall also be specified. These provisions, in our opinion, must be construed with reference to the object which a notice of sale has in view, namely, that, as the Judicial Committee of the Privy, Council explain in Raveneshwar Prasad v. Baijnath Goenka(1), it must enable likely purchasers to know exactly what is going to be sold, and to ensure thereby, reasonable competition. The test of a valid notice under sec. 6 must, therefore be as to whether the specification of the estate or share of an estate therein, as the case may be, is sufficiently definite from this point of view, and as the Judicial Committee also point out in the above case, no hard and fast rule can be laid down as to what will constitute such sufficiency. It must depend upon the particular facts of each case. [See also the observations of Ghose, J., in the Full Bench decision of Ismail Khan v. Abdul Aziz(2)].

7. It is true that the Board of Revenue has issued special rules and also prescribed special forms for drawing up the notice of sale, which will be found in the Government Manual of the Revenue and the Patni Sale Laws, but these have no statutory force, not being framed under any authority conferred by the Act. They are in the nature of administrative directions to Government's own officers, and have evidently been laid down with a view to avoid the chance of an incomplete specification. This means, in other words, that if the rules and forms are observed, the possibility of an objection is obviated almost to a certainty, but it does not follow that if any of the particulars therein specified are omitted, the omission will necessarily vitiate the notice, even though the particulars given may be sufficient to identify the estate or share of an estate to be sold, and give prospective buyers full information as to what they are invited to bid for. The mistake which the learned District Judge made in the present case was to treat these rules and forms as though they were statutory directions which required to be literally complied with.

8. The property advertised for sale here was not the whole estate, but only two shares which were correctly specified. As for non-mention of the mouza, this was not at all a material omission. It may be pointed out that there is express authority that either in selling an estate or selling a share in an estate, it is unnecessary, and it may in fact not be possible always from the Collector's records, to specify the mouza or mouzas of which the estate or the share is composed. See Amirunessa v. The Secretary of State(3) and Ram Narain Koer v. Mahabir Pershad Singh(4). As the whole estate was not going to be sold, the omission of the sadar jama of the whole estate was also not fatal: this could not possibly mislead the bidders. It is not disputed that the sadar jamas of the shares which were exposed to sale were duly given. There was also a specification of the arrears due from each separate account. As already stated, one of the defaulting shares was in arrear for two kists, namely, the fourth kist of 1933-34 and the succeeding kist, the first of 1934-35, whereas the arrear due from the other share was only for the last of such kists, namely, the first kist of 1934-35. This was correctly shown, but it appears that only one latest date of payment was given in both cases— the 28th of June, 1934. This was, however, accompanied by a statement that the instalments in respect of which the notice was issued were due on or before the 32nd of Jaistha, 1341 B.S, being the last day of that Bengali month and corresponding to the 14th of June, 1934. These unpaid amounts clearly, therefore, became “arrears of revenue” within the meaning of sec. 2 of the Act before the latest date of payment specified. This we consider to have been quite sufficient, and no bidder could possibly be prejudiced. The information given was enough to satisfy intending purchasers that the sale was going to be held on a proper date. All the objections taken, to the validity of the notice on the ground of its insufficiency thus fail.

9. As regards the Plaintiffs' next point that the notice contains a wrong specification of the kists for the arrears of which the sale was to be held, it seems to us, as the Appellant points out, the objection is based on an entire misapprehension. The original notice is not on the record, but on the strength of a certified copy, Exhibit 7, which the Plaintiffs put in, they show that at the foot of the notice occurred a statement which read as follows:—

“The Government revenue of the said mahal for the realisation of which the sale will be held is the amount which was due on or before the 19th Bbadra 1338 B.S and of which the latest date of payment is the 11th Aswin 1338 B.S, following, corresponding to the 28th September, 1931.”

10. This could possibly have no reference to the mahal in question in this case, and is undoubtedly inconsistent with what was stated in the body of the notice and in the various columns set out therein. For one thing, the sale date was given as the 24th September, 1934, in the first part of the notice, and it would be ridiculous to suggest that the arrears for which the sale was going to be held were not recent arrears as shown in the appropriate columns therein, but past arrears of the year 1931. The discrepancy would itself be so glaring that we do not suppose any one could conceivably be misled thereby. Any one reading the notice would at once reject this particular statement occurring in a footnote, which is really not a part of the notice. As Mr. Jana further pointed out to us, the entry itself appears in the footnote only as an illustration of how the direction contained in the foot-note was to be carried out in completing the printed form of the notice which was used. The original notice had been called for by the Munsif, and it is significant that no such objection was raised by the Plaintiffs before him, which only shows that the original document would not have lent them any support. In our opinion, therefore, this particular objection which Mr. Chakravartti pressed with some insistence before us must also fail.

11. There remains now to consider the question of the supposed illegality of the joint sale, a question on which there appears to be no direct authority one way or the other. The answer must depend on a construction of the relevant sections of the Act, and not on any rules which the Board of Revenue may have promulgated, and which, as already explained, have no statutory authority whatever.

12. The first section to be considered is sec. 13 which confers the authority to hold sales of separate shares of an estate for arrears of revenue, It provides 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. 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 separate portion of jama assigned thereto.”

13. The section makes it clear that there can be no sale of separate shares unless separate accounts have been opened. Secondly, it shows that a separate share for which a separate account has been opened cannot be put up to sale merely because that share is in default. The estate as a whole must itself be liable to sale for arrears. It was expressly ruled in Indra Mani Dasya v. Priyanath Chackrabarty(5), that the term “estate” in the clause “if the estate shall become liable to sale for arrears of revenue” means the entire estate out of which the separate share has been carved. The matter has since been put beyond the possibility of doubt by the decision of the Privy Council in Krishna Chandra Bhowmik v. Pabna Dhana Bhandar Company, Limited(6), where it is definitely laid down that in order to justify the sale of a share in separate account, (a) the estate must have become liable to sale for arrears of revenue, and (b) an arrear of revenue must be due from the share according to the separate account. It may well be that though a separate share is in default, there is a surplus in the general account of the estate, and in that case the share will be exempt from sale. It will further appear from the section that though under secs. 10 and 11 separate liabilities are created by the opening of separate accounts, the separated shares will still be deemed to constitute one integral estate. The object evidently is to preserve intact the ultimate security of Government for their revenue demand against the estate. That is indeed the paramount consideration governing the whole of this Act, and the next succeeding section shows how, notwithstanding the provision for sale of separate shares, the security may and will be still enforced by bringing the entire estate to sale. By permitting the opening of separate accounts the Act seeks no doubt in terms of its preamble to give recorded sharers of a joint estate who pay their share of the sadar jama, an easy means of protecting their shares from sale for the default of their co-sharers, but there is no ultimate protection if the Government demand is still unsatisfied. In that case the scheme of the Act is that the whole estate shall be made to answer for the demand.

14. It is rather unfortunate that the Act, though it authorises the sale of separate shares under sec. 13, still makes no express provision regarding the procedure for the holding of such sales. In the case of whole estates, a separate sale of each such estate seems to be clearly contemplated by sec. 21, but in the case of separate shares, where there are more than one to be sold on the same date of sale, there is no provision as to whether the shares should be put up separately one after another, or put up jointly in one or more lots at the discretion of the Collector; and yet it is apparent that this is a matter of consequence, and not of mere form, which will lead to different results according as the one procedure or the other is followed. The question, as it seems to us, will, therefore, have to be decided with reference to the scheme of separate accounts as a whole as envisaged in the Act, apart from any light that may be thrown by the language used in any of the sections bearing on the matter. In other words, what has got to be considered is whether a joint sale or a separate sale will best carry out the purposes of the Act and be consistent with all its provisions.

15. One thing appears to be fairly certain, and it is that if a separate sale is held of each defaulting share in separate account, there can be no question of its contravening any of the provisions or declared objects of the Act. It has still to be seen whether a joint sale, if held, will be illegal. We may set out some of the considerations which ought to help towards a correct conclusion.

(i) A joint sale would really defeat the object of opening a separate account. That object, as secs. 10 and 11 show, is to create “separate liabilities” of the share for which a separate account is opened, and this means not only a separation of the liability to pay the revenue by apportioning a specific share to the separate account, but also a separation of the liability to be put up to sale for default. As Mitter, J., points out in Manmatha Nath v. Ananga Kumar(7) “the liability for sale of the separate account is separated from liability for sale of other separate accounts or of the residuary (share) that is left after the opening of the separate accounts.” By a joint sale one defaulting share would be made to answer for the default of another, which is the very thing that the opening of separate accounts is designed to prevent.

(ii) A joint sale would also involve the appropriation of the purchase money of one share towards the discharge of the arrears due from another, but this would be contrary to the provisions of sec. 31 regarding the application of purchase money. The question as to the true meaning and effect of this section has already been the subject of judicial decision, and we see no reason for not accepting the interpretation which has been put upon it. In Nirmal Nalini v. Rani Harsamukhi(8), it was contended on the terms of this section that the surplus sale-proceeds of the share of an estate can be applied to the liquidation of all arrears due from the entire estate, but this contention was expressly overruled by both the learned Judges, Nasim Ali and Henderson, JJ., who decided the case. It was pointed out that the word “respectively” might not occur after the words “the estate or share of an estate sold,” but all the same, if the Collector was to be at liberty to apply the surplus proceeds of the sale of any share to the satisfaction of the arrears of the whole estate, and necessarily therefore, of the arrears due from other shares, there would have been no necessity for referring specifically to the share of an estate. The latter part of the section further showed that after the arrears due upon a separate account were discharged, any surplus of the purchase-money that might be left over, after meeting all other demands against it, must be held in deposit on account of the proprietor of that particular share. If, then, the purchase-money of one defaulting share could not be applied for the benefit of another, it followed that a joint sale would be illegal.

(iii) Sec. 14, again, seems distinctly to point to a separate sale as the proper procedure. It provides that if in the case of a sale under sec. 13, the highest offer for the share exposed to sale shall not equal the amount of arrears due “thereupon,” the Collector shall declare that the entire estate shall be put up to sale on a future date, subject to certain conditions specified therein. The word “thereupon” can only mean “upon that particular share which is exposed for sale.” Under the General Clauses Act, the singular may include the plural, but neither the subject nor the context here requires the extended meaning.

(iv) Then, again, a joint sale of two or more defaulting separate accounts may be unfair to other recorded sharers of the estate under sec. 14. It will be seen that when due to the insufficiency of the sale-proceeds of one share, the Collector makes a declaration under this section for the sale of the entire estate, the other co-sharers are given a right to avert such sale by paying within 10 days the arrears due from the share which was first put up to sale. If two or more shares are joined together in one sale, the burden of such payment is necessarily made heavier, and this might in effect defeat the right which the section gives.

v) A joint sale may also work ah injustice as between the several defaulting sharers. Thus it may happen that one of the shares is subject to an incumbrance, but the other is not, and as under sec. 37, only an entire estate, and not a share of an estate, is sold free from incumbrances, it would be manifestly unfair to include a share on which there is no incumbrance in the same sale with a share which is burdened with an incumbrance. It might easily affect the bids, and thus prevent the proprietor of the share which is free from incumbrance from realising the price which he might otherwise have obtained.

It may again be that though a number of shares are advertised for sale, each being in arrear in its separate account, still the sale-proceeds of one share may be sufficient not only to liquidate the arrears due upon that share, but thereby also to wipe out the demand in the general account of the estate. In such a case, as explained by the Judicial Committee in Krishna Chandra Bhowmick's case already referred to, the other shares, though in default, could not yet be brought to sale. But by the holding of a joint sale, these other shares would be necessarily deprived of the chance of thus obtaining an exemption from sale. A joint sale from this point of view might really nullify the provisions of sec. 13 as interpreted by the Judicial Committee.

(vi) Another difficulty about a joint sale is that of determining how many or which defaulting shares are to be included in one sale. The Act gives no guidance whatever on the point, but it is only reasonable to suppose that some directions would have been given if joint sales had been really contemplated. It is true that there is no specific provision in the Act regarding the order in which the separate accounts should be put up to sale, but sec. 21 might be taken as a guide, and on the analogy of the rule therein laid down for the sale of estates, the numerical sequence in which the separate accounts are recorded might be followed. We are not unmindful that the order in which the sales are held might affect the interests of the defaulting sharers as between themselves.

16. Two main arguments were advanced on behalf of the Appellant in support of a joint sale. One was based on a rule laid down by the Board of Revenue in Note 8 to sec. 13 in the Government Manual, and the other on the words occurring in the last part of sec. 13.

17. As regards the first point, the Board's rule no doubt directs that “all the shares of separate accounts of one estate which fall into arrears should be advertised for sale together and not separately, and should be put up to sale together,” but all that need be said about it is that this is not a statutory rule, and can have no legal effect whatever, if upon a construction of the Act a joint sale is found to be unwarranted.

18. As regards the second contention, the words relied on are that the share or shares sold will be “charged with the separate portion or the aggregate of the separate portions of jama assigned thereto,” special stress being laid on the reference to the “aggregate” of separate portions of the jama. It is said that these words can have no possible application except in a case of joint sale. We do not think that is so. In our opinion, the language used is quite appropriate to cover a case where, on a separate sale, several separate accounts are purchased by one and the same person. All that is contemplated is that in such a case the several separate accounts will be merged into one in the hands of a common purchaser. We cannot hold, therefore, that the words referred to necessarily indicate a joint sale of a number of defaulting shares in one lot. It is not necessary to consider if the words are also meant to apply to a case of several separate accounts being held by one and the same recorded co-proprietor before the sale.

19. It might be relevant to notice another argument which might possibly be raised in view of the actual decision in a case which has already been referred to on the question of the interpretation of sec. 31, Nirmal Nalini v. Rani Harsamukhi.

20. It was held in that case that where a bid for one separate account is not sufficient, the Collector may at once make a declaration under sec. 14 for the sale of the entire estate without previously putting up the other separate accounts which, are also in arrears and have been advertised for sale. It may be suggested that if this view is correct, it practically renders separate sales of separate shares infructuous, besides involving a differential treatment of one separate account as against another which is equally in default. A joint sale may thus appear to be called for as the only fair and possible remedy to avoid such an anomalous result.

21. The answer is, in the first place, that the decision itself postulates a separate sale. Secondly, it does not hold that in every case where the first sale of a separate account fails to realise the full amount of arrear due thereupon, the Collector shall be bound to drop the sale of the other defaulting shares, and further, no anomaly is really involved. The case was decided on the basis that after the first sale, the Collector found it useless to proceed with the other sales which had been notified. The position in fact was that even if the other sales were held and the proceeds were sufficient in each case to cover the amount due upon the share sold, the estate as a whole would still have been left in arrear, and a declaration under sec. 14 would have been inevitable in any circumstances. It was not possible, therefore, to save any of these defaulting separate accounts: the deficiency in one case was sufficient to destroy the chance of escape of every one of the other shares which were in arrears. If, then, in this state of things, it was held that after the sale of one separate account, the Collector was justified in making an order under sec. 18 (as he must have done to regularise the procedure) exempting the other separate accounts from sale, though advertised, this in our opinion could not be taken to be a pronouncement of the Court against the rule or practice of separate sales of separate accounts. The Court was not called upon to consider a case where the arrears due upon one or more, of the separate shares advertised for sale, if realised, would have been sufficient to wipe off the demand against the estate as a, whole.

22. In a case where there is such a possibility, the Collector, in our opinion, shall be bound to proceed with the sales of the separate accounts seriatim, stopping only when he finds that by appropriating the purchase money of each share sold to the liquidation of its own arrears, the estate as a whole is freed from its liability for arrears of revenue in the general account. Under the provisions of sec. 13, as already explained, the Collector will indeed have no option but to stop when such a stage is reached. There is nothing in the decision in Nirmal Nalin's case which militates against this view, and that case cannot, therefore, be held to have decided against separate sales in any view of the matter. There is no anomaly either involved in the decision which requires to be corrected by a joint sale. A joint sale would, on the other hand, create more anomalies than it would answer.

23. In our judgment, upon a careful consideration of all the relevant provisions of the Act, it must, therefore, be held that a joint sale of two or more separate accounts is contrary to law, and cannot be supported. On this ground, if not on the other ground regarding the validity or otherwise of the notice under sec. 6, the sale in the present case must consequently be declared void and set aside.

24. The result is that the appeal will stand dismissed and the suit decreed with costs in both the Courts below. We make no order for costs in this Court.

25. We direct that a copy of this judgment be forwarded to the Board of Revenue.

Edgley, J.:— I agree.

C.C