1. The subject-matter of these two appeals is a permanently settled estate, touzi No. 2562 on the register of the Collector of 24.pergannas bearing an annual revenue of Rs. 358 odd. It was formerly registered in the Nuddea Collectorate and bore the No. 5S0. The whole estate was let out in patni at an annual rent of Rs. 1250. At the material time Surendranath and Narendra Nath Basu (appellants in First Appeal No. 18 of 1938) were the patnidars. The said estate belonged to three sets of proprietors, namely (1) to the Ghoses, Surendra and Narendra Nath Ghose (2) to Monmotha Nath Mukherjee (appellant in First Appeal No. 170 of 1937) and (3) to a group of Mohamedans, Masuda Khatun Bibi and others. On 17th November 1925 the Ghoses, opened a separate account No. 1 under the provisions of Section 10 of Act 11 of 1859. The revenue allotted to that account was Rs. 105 odd. From 18th November 1925, to 1st August 1934, Monmotha's predecessors, Monmotha and the Mahomedan group continued to be recorded in the residuary to be called hereafter "the bigger residuary", with liability to pay Rs. 252 odd as the annual revenue. On 2nd August 1934, a separate account No. 2, was opened in favour of Monmotha with a revenue of Rs. 184 odd, with effect from the following September kist as notified under Section 3 of Act 11 of 1859. The position on 2nd August 1934 was accordingly as follows: Separate Account No. 1; Recorded Proprietors, Ghoses, revenue Rs. 105 odd per year. Separate account no. 2; Recorded Proprietor, Monmotha, revenue Rs. 184 odd per year. Residuary; Recorded Proprietors, Masuda Khatun Bibi & Ors., revenue Rs. 68 odd per year (to be hereafter called the "Smaller residuary"). The apportioned revenue of the separate accounts and of the residuary, as was the revenue of the entire estate before the opening of the separate accounts, was distributed and made payable in four kists notified by the Board of Revenue under Section 3 of Act 11 of 1859. These kists we will designate as the June, September, January and March kists, to distinguish them from the kists according to the engagement, i. e. the dowl kabuliats, which were according to the Bengalee year. The kists of the dowl kabuliats will be designated as the Bysack kist, Jait kist etc. The last date for payment of the June, September, January and March kists were respectively 28th June, 28th September, 12th January and 28th March. As the amounts of revenue payable for the September kist 1934 and January kist 1935 are only material in these appeals, we give the details thereof.
Separate account No. 1
3. The proprietors of the smaller residuary (the Mahomedan group) did not pay rupees 22-3-9 on or before 28th September 1934. The said residuary was accordingly advertised for sale by the Collector under Section 13 of Act 11 of 1859. On the fixed sale-date 9th January 1935, the highest bid for the same did not reach the amount for which it was advertised. The Collector stopped the sale, made the declaration under Section 14 that if the other recorded proprietors of Estate No. 2562 did not pay up the arrears within ten days the entire touzi would be sold at a future date. As none of the other recorded proprietors paid up the arrears due for the residuary, the separate accounts were closed, that is, all the accounts were merged into one account and the whole estate was advertised for sale. As the proprietors of the smaller residuary had not paid the revenue for January kist 1935, the advertised demand for which the entire touzi was put up for sale on 25th March 1935 came up to Rs. 47-9-11. It is not disputed before us that the sum represented the amount of arrears of the entire estate as due on 22nd January 1935. At the sale the respondent Ananga Kumar Mukherjee purchased the entire touzi at Rs. 2000. Appeals to the Commissioner of the Presidency Division by some of the recorded proprietors proved infructuous. The sale was confirmed and a sale certificate was issued to Ananga on 24th September 1935 (ex. Section 2-122).
4. Within the period of limitation three suits were instituted challenging the sale. The first suit (No. 94 of 1935) was instituted by the patnidars. First Appeal No. 18 of 1938 arises in this suit. The second suit (no. 16 of 1936) was instituted by the recorded proprietors of separate account No. 1. There is no appeal in this suit. The third suit (No. 23 of 1936) was instituted by Monmotha, the recorded proprietor of separate account No. 2. First Appeal No. 170 of 1937 arises in this suit. In all the suits the sale was challenged on the grounds (a) that the Collector had no jurisdiction to sell; (b) that there were material irregularities. In the first two suits it was further alleged that there was fraud and collusion between Monmatha and the Mahomedan proprietors by which the sale was brought about and that the auction purchaser Ananga was the benamidar of Monmatha. The three suits were tried together. The learned Subordinate Judge overruled all the contentions of the plaintiffs and dismissed the suits. In these two appeals all the findings of the learned Subordinate Judge have not been challenged but the following points only have been argued. (1). The attempted sale of the smaller residuary under Section 13 of Act 11 of 1859 was premature, as the sum of Rs. 22-3-9 did not become payable on or before 28th September 1934. (2) The Collector had no jurisdiction to advertise for sale "the smaller residuary" and to put up the same to sale on 9th January 1935. He ought to have proceeded to sell in the first instance the "bigger residuary" before adopting the procedure laid down in Section 14 of Act 11 of 1859. (3) The closing of separate accounts as on 22nd January 1935 was illegal. (4) The blending of the two amounts of arrears - one for the period anterior and the other subsequent to the abortive sale of "the smaller residuary"-was illegal. (5) There were misstatements in the sale proclamation issued for the sale of the entire estate and those misstatements had the effect of misleading intending bidders to the belief that the entire touzi was not being advertised for sale; and (6) that the auction purchaser, Ananga, was a benamidar of Monmotha and so the patni was not affected by the sale.
5. We do not see any substance in the last two contentions. There is no sufficient evidence which would lead us to hold that Ananga is the benamidar of Monmotha. The case of benami has been sought to be supported by the appellants in Appeal No. 18 of 1938 on most flimsy materials. Bankim Chandra Choudhury says that he saw both Monmotha and Ananga on the date of the sale in the Certificate Sherista of the Collectorate. No relationship has been proved between the two. Ananga had the means to buy the property and. he has proved that he bought it with his own money both by oral evidence and by his account books. Two copies of the sale proclamation have been produced. They are Exs. M and Q. In both the number of the touzi is correctly given, and in both it is stated that the entire touzi would be sold on 25th March 1935. In Ex. M however the amount of arrears (Rs. 47-9-11) has been placed in a wrong column, column 7, instead of column 8. But in Ex. Q, which was published at the Collectorate and in the Court of the District Judge, the said amount has been placed in the right column. We cannot hold that Ex. M would have conveyed to any one the idea that only a separate account and not the entire touzi was being advertised for sale. Moreover as the learned Subordinate Judge has rightly remarked, the proclamation Ex. Q. which was published at the Collectorate and in the Court of the District Judge was the more important one, the one to which intending bidders would ordinarily look to. We accordingly overrule the fifth and the sixth contentions urged by the appellants. The first contention has been placed before us in two branches. It is firstly urged that as the total annual re-venue of "the smaller residuary" was less than Rs. 100 the latest dates for payment as noticed by the board of revenue under Section 3 were 28th June, 12th January and 28th March. The general notification of the board is that in respect of estates the annual revenue of which was less than Rs. 100 the arrears are to be cleared up by three instead of four kists. That notification does not in our judgment apply to separate accounts, but to entire estates the revenue of which is less than Rs. 100. The annual revenue of touzi No. 2562 was Rs. 358 odd. The only effect of opening of separate accounts was to confer the privilege defined in Section 13, on the recorded proprietors of the separate accounts. Arrears due from the separate accounts which fell due according to the Dowl kistibandi before 28th September 1934, had therefore to be paid up on or before said date though the annual revenue of each separate account was less than Rs. 100, where the annual revenue of the whole touzi was more than Rs. 100. We therefore overruled the first branch of this contention.
6. The second branch of the contention is that the sum of Rs. 22-3-9, at least a good portion thereof, did not become payable according to the Dowl Kistibandi before 28th September 1934. The Dowl Kistibandi of the Permanent Settlement of 1793 has not been produced but engagements made thereafter by the proprietors have been produced. As it is perfectly legitimate for the proprietors to change the Dowl Kistibandi in agreement with the Crown, the last of such agreements only is material. That is Ex.U-1 (II 49) dated 13th February 1854. It shows that according to engagement revenue of the estate in question which was then touzi No. 530 of the Nuddea Collectorate was payable in twelve monthly kists according to the Bengalee calendar. The revenue for kists Ashar, Sraban and Bhadra came up to Rs. 117. The Ashar kist would fall due according to Section 2 of Act 11 of 1859 on 1st Sraban which would roughly correspond to 16th July and the Bhadra kist on 1st Aswin which would roughly correspond to 16th September. According to the notification issued under Section 3 this sum of Rs. 117 had therefore to be paid by 28th September. This agrees with the statement which the Collector of Nuddea forwarded to the Collector of 24-Pargunnahs when the estate was transferred from the rolls of Nuddea to that of the 24-Pargunnahs Collectorate (Ex. L 3-II 263). This sum of Rs. 117 was apportioned between the separate accounts Nos. 1, 2 and "the smaller residuary." The small difference of 10 annas and 1 pie being accounted for by the fact that on some lands of the touzi being compulsorily acquired remission of revenue was granted. The sum of rupees 22-3-9 for which "the smaller residuary" was put up for sale on 9th January 1935 was accordingly payable by 28th September 1934, and as it was not paid by that date, the Collector was justified in putting up the same for sale on that date, if the second contention of the appellants be held to be not a sound one.
7. We accordingly proceed to examine the second contention. That contention involves the construction of the last paragraph of Section 10 of Act 11 of 1859. The last sentence of that paragraph lays down that the separate liability of the proprietor of the separate account would commence from the date on which the Collector records his sanction to the opening of that separate account. In the case before us the Collector recorded his sanction to the opening of separate account No. 2 in favour of Monmatha on 2nd August 1934 (ex. G-3-ii 128). That separate account was carved out of "the bigger residuary." On these facts Mr. Bose appearing for the appellant urges that the liability of Monmatha and the Mahomedan proprietor to pay the kists according to the engagement remained joint up to 1st August 1934; that is to say, "the bigger residuary" remained liable for the kist Ashar and a part of kist Sraban and separate liability of account No. 2 and of "the smaller residuary" was created for the rest of kist Sraban and for the kist Bhadra. He accordingly argues that "the smaller residuary" could not in law be put for sale for non-payment of Rs. 22-3-9 on 28th September 1934, because that was not the amount of the separate liability of the smaller residuary, the separate liability being less. If this argument of Mr. Bose is accepted it would mean that both the bigger and smaller residuary had to be advertised for sale, for on the view urged by Mr. Bose both would have been in default on 28th September 1934. The basis of Mr. Bose's argument is that the concluding sentence of Section 10 contemplates the liability to pay according to the Dowl engagement. We cannot accept his contention for two reasons. His argument overlooks the important provision of section 10 to the effect that after the opening of a separate account, all payments made by the proprietors in whose favour the separate account was opened was to be credited to his separate account. After separate account No. 2 was opened out of "the bigger residuary" the "bigger residuary" had thus no existence for revenue administration. If it had no existence for revenue administration after 1st August 1934, after the default of the September kist of 1934, it, the bigger residuary, could not obviously be put up to sale.
8. Our second reason is that when Section 10 speaks of separation of liability it does not directly contemplate the separation of liability to pay according to the Dowl Kistibandi but the separation of liability for sale in de. fault of payment according to the kists notified under Section 3. The last sentence of Section 10 must, in our opinion, be read with Section 13, for, in our judgment, Section 13 amplifies and explains the last sentence of Section 10. The liability for sale of the separate account is separated from the liability for sale of other separate account or of the residuary that is left after the opening of the separate accounts. In case the residuary is in default on the kist date as fixed according to Section 3 after the opening of a separate account, that separate account cannot be put up to sale in the first instance in that event because its liability for sale had already been separated from the liability of the residuary from the date when its opening was sanctioned. We accordingly overruled this contention of Mr. Bose also. The Collector was not only justified in advertising for sale "the smaller residuary" for the non-payment of Rs. 22-3-9 on the last date of the September kist of 1934, but that was the only course open to him under the law. As he correctly followed the procedure of Section 14, the sale of the entire estate was perfectly legal.
9. We do not see any force in the third and fourth contentions advanced by Mr. Bose. They are concluded by necessary implication by the judgment of this Court in Sheikh Haji Mutasuddi Mian v. Mohammed Idris (`15) 2 AIR 1915 PC 177 which was approved in toto by the Judicial Committee of the Privy Council, and by the decision in Abdul Jabbar v. Jitendra Kumar Pal . Though the last mentioned case was under Assam Regulation 1 of 1886, there is no difference in principle as the relevant sections of the Assam Regulation are pari materia with Sections 10, 13 and 14 of Act 11 of 1859. We need not repeat the reasons which are stated in the last mentioned case in which one of us was a party. The result is that both the appeals are dismissed. Respondent 1 will get full costs from the appellant in Appeal No. 170 of 1937. As the value of Appeal No. 18 of 1938 is only rupees 2200 and as it had been transferred to this Court from the Court of the District Judge, 24.Pargunnahs, respondent 1 will get from appellants the hearing fee only which we assess at five gold mohurs.