ORDER OF REFERENCE TO A FULL BENCH.
The facts of the case are not in dispute. The appellant, plaintiff, was taken in adoption by ryotwari land-holder. The pattah for the lands in dispute stood in his name. After his death, the pattah was transferred to the name of the adoptive mother. She did not pay the Government revenue, and the lands were brought to sale and purchased by the 2nd defendant. The suit is to recover possession. The Subordinate Judge has found that tuere was no fraud on the part of the 1st defendant in allowing the property to be sold for arrears of revenue. We accept that finding. He has further found that the suit is barred by limitation as it was brought more than six months after the piaintiff attained his majority; vide Sect. 59 of the Madras Revenue Recovery Act.
The main argument before us was that Sect. 59 of the Act has no application to the facts of this case. The property was admittedly sold when the plaintiff was a minor Regulation X of 1831, Sect. 2, enacts that no property of a minor shall be sold for arrears of revenue. Sect. 63 of Act 11 of 1864 provides “Nothing in the Act shall be held to bar the operation of the provisions of Regulation V of 1804 and of Regulation X of 1831 in respect to the sale of lands of minors and other disqualified land-holders.” It seems, therefore, clear that the Sale of the land was without jurisdiction. Sect. 44 of the Act which permits a sale for non-payment of revenue must be read subject to Sect. 63 of the Act which in terms preserves to minors the rights they enjoyed under Regulation X of 1831. It was, however, held in Raja Gowndan v. Raja Gawnian that a sale of a minor's property under Act II of 1864 is covered by Sect. 59 of the Act. Reliance was placed in that judgment upon Gobini Lal Roy v. Ramjanam Misser. In this latter case, the Judicial Committee had to deal with a case to which the provisions of the Bengal Revenue
Recovery Act was applicable and they pointed out that irregular as well as illegal sales should be appealed against to the Commissioner. We do not think that pronouncement is any authority for the proposition that a sale which is prohibited by a legislative enactment should be regarded as a proceeding intra vires the powers of the Collector so as to invite the provision of Sect. 59 of the Act.
The next point is whether the present sale is not against the provision of Regulation X of 1831. It was contended on the authority of Krishna v, Mekam Peruma that the estate of the minor referred to in the Regulation must be of such magnitude and importance as can be managed by the Court of Wards. Regulation V of 1804 which was in force when Regulation X of 1831 was passed makes no reference to the extent of the property which alone can be taken under the control of the Court of Wards.
Ordinarily, no doubt, the Court will not interfere with private management where the estate is not considerable; but there is no ground for saying that the Regulation provides only for a particular class of estates. In our opinion, Krishna v. Mekam Peruma is not reconcilable with the language of either Regulation V of 1804 or of Regulation X of 1831. Moreover, there is no evidence in this case that the authorities considered that the estate should not be taken up by the Court of Wards. It does not follow that because the Court did not take up the management) it would not have done so, if appealed to.
Mr. Muthiah Mudaliar next argued that as the pattah stood in the name of the adoptive mother and as she was the defaulter the property was rightly sold under the Act. Sect. 2 of Regulation X of 1831, speaks of the estate having come to the minor by inheritance, and prohibits the sale of such an estate. The provision for sale where the ‘pattadar makes default connot be spelled out of this Regulation. It is true that Subramania Chetty v. Mahalingasami Sivan holds that the reveuue authorities are not bound to give notice to the real owner, so long as the pattah stands in the name of some other peeson. That was a case of vendor and purchaser. There has been no similar decision in the case of father or mother and son. Subramania Chetty v. Mahalingasami Sivan refers Specially Regulation XXVI of 1802 which relates to the case of a purchaser not taking steps to have the legistry transferred to his name. Moreover, it is doubtful whether the in face of Sect. 2 of Regulation X of 1831. the provision of Act II of 1864 which enables a sale where the person in whose name the pattah stands makes default in the payment of revenue is applicable to the sale of properties belonging to minors.
As there are earlier decisions of this Court which we think require reconsideration, we have resolved to refer the folowing questions for the opinion of the Full Bench:—
(1) Whether a sale of a minor's property under Act II of 1864 is a proceeding to which Sect. 59 of the Act is applicable so as to compel the aggrieved parties to sue within six months of the sale?
(2) Whether Regulation X of 1831 only applies to such estates of the minors as are ordinarily taken charge of by the Court of Wards.
(3) Whether the fact that the pattah stood in the name of the mother of the minor, precludes the latter from invoking the aid of Regulation X of 1831.?
[This Second Appeal came on for hearing on the 4th and 5th days of March 1918, in pursuance of the above order of reference, before the Full Bench as constituted above
Messrs. T. R. Venkatarama Sastri and S. Panchapagesa Sastri for the Appellant.
Mr. S. Muthtah Mudaliar for the Rerpondents.
OPINION
Sir John Wallis, C. J. — I do not think that the decision in Krishna v. Mekam Peruma is any authority for the proposition mentioned in the order of reference. In that case, a sale of a permanently settled mitta at a time, and in respect of arrears which accrued due, when some but not all of the joint proprietors were minors, was held not to be prohibited by Regulation X of 1831. The learned Judges were of opinion that an estate so owned was not one of which the Court of Wards could have assumed management under Regulation V of 1804, and that Regulation X of 1831 only applied to estates “which might have but had not been taken under the Court of Wards “Regulation V of 1804 imposed to restriction on the Court of Wards with the reference to nature of the minor's property, and consequently the reasoning of the learned Judge in Krishna v. Mekam Peruma has no bearing on the persent case where the sole owner of the land is a minor. It has, however, been strenuously contended before us that, as the minor's lands are ryotwari, they are not an estate within the meaning of Regulation X of 1831, and that the sale of ryotwari lands during minority is not prohibited by the Regulation. The estates of minors under the management of the Court of Wards had been protected from sale for arrears of revenue by the Regulation V of 1804, and Regulation X of 1831 recites that doubts had been entertained as to the liability of the estate of a minor not taken under the management of the Court of Wards to be sold for arrears of revenue. The doubts must have arisen with reference to Sect. 5 of Regulation XXVI of 1802 which empowered the Collector “where lands may be attached for arrears of revenue” to cause the lands of the defaulting proprietor to be sold, This Regulation must be read with Regulations XXV and XXVII of 1802 which were passed on the same day. It is no doubt, true, as appears from Sects. 1 to 3 of Regulation XXV that it was then the intention to fix a permanent assessment on all lands liable to pay revenue to Government but this was to be a gradual process, and the intention was soon abandoned. The provisions of Regulation XXVI, however, are not limited to such cases. The preamble recites the necessity that the property of landed estates being malguzary, or paying revenue to Government, should in the event of default be liable to sale for the purpose of making good the public revenue assessed on such lands, and shows that it was not intended to limit the power of sale to cases of permanently settled lands only. By Sect. 2 the Collectors are required to keep public registers for the purpose of registering the landed property paying revenue to Government, terms which are perfectly general, as are also the terms of the succeeding sections. Sect. 5 confers a power of sale where lands may be attached for arrears of revenue and the subject of attachment for arrears of revenue was dealt with by the succeeding Regulation XXVII of 1802. In that Regulation again proprietor was defined so as to include “all actual proprietors of land who pay the revenue assessed upon their estates immediately to Government'’. Regulation II of 1806, which provided for the establishment of Zillah or District Courts in Districts in which the Permanent Settlement had not been introduced, enacted in cl. 4, that ‘in eases where the engagements may be contracted with the ryots or individual occupiers of land they shall be regulated by the Regulations of A. D. 1802 and by such subsequent Regulations as may particularly apply to them.” Sect. 6 also provided that Regulations XXVII and XXVIII should be extended to all Districts in which Zillah Courts might be established under the Regulation, and should be observed by Collectors as woll as Zemindars or farmers in their engagements with the ryots of immediate occupiers of the soil. The necessity for this provision, so far as Collectors are concerned, is not apparent, but however this may be this express extension of Regulation XXVII connot be construed as meaning that Regulation XXVI was not to apply to ryotwari lands. It has always been treated as applicable to them. Seshagiri v. Picka, Secretary of State v. Ashtamurthi, Subramania Chetty v. Mahalingasami Sivan. It is no doubt true that sales of ryotwari lands for default of payment of revenue were at first rare, and that the coercive process provided by Regulation XXVII was usually resorted to, a procedure, it may be observed, which might eventuate in sale. There is, therefore, no foundation for the contention that ryotwari lands owned by mines do not come within the protection of Regulation X of 1831 and the answer to the second question is that there is no such distinction as suggested.
As regards the third question, the answer must be in the negative. It was the duty of the responsible officer under Regulation XXVI of 1802 to register the plaintiff as the owner on his father's death, and the fact that he correneously registered the widow of the deceased cannot affect the plaintiff's rights, and would of itself render the subsequent sale for arrears of revenue in question void as regards the minor, apart altogether from the Regulation, as held in Secretary of State v. Ashtamurthi.
In Subramania Chetty v. Mahalingasami Sivan, the Bench of three Judges were dealing with a case where the registered proprietor had transferred his interest but the transfer had not been registered and was therefore void as against Government by the provisions of Sect. 3 of Regulation XXVI, and the registered proprietor was therefore held to be the defaulter under the Revenue Recovery Act. That decision does not apply to the present case.
The answer to the first question must also be in the negative. Sect. 63 of the Revenue Recovery Act II of 1864 provides that nothing therein shall be held to bar the operation of the provisions of Regulation X of 1831, in respect to the sale of lands of minors and other disqualified proprietors. This cleanly renders the provisions of Sect. 59 of that Act inapplicable to cases protected by Regulation X of 1831, and it is unnecessary to rely on the further ground that, even in the absence of Sect. 63, the provisions of Sect. 59 would not apply to lands exempted from sale by statute.
Sadasiva Aiyar, J.—I agree.
Spencer J.—I agree as to the answers to be given to the questions in the order of reference. I must confess to having been a little puzzled by the form in which the second question has been put. It would indeed be strange if the scope of an enactment were to be limited by notions of what is a considerable estate or of what estates are ordinarily taken charge of by the Court of Wards, seeing that ‘ordinary’ and ‘considerable’ are relative terms. No doubt it is within the discretion of the Government, upon receiving the reports of Collectors, to decline to order the Court of Wards to superintend particular estates of incapacitated proprietors (vide Chapter III of Madras Act I of 1902). But I can find no authority for the suggestion that an estate must be of any definite size or must not be an estate of ryotwari lands in order to give the Court of Wards jurisdiction over it.
In Regulation V of 1804 the only description given of the estate to which the Regulation applies is that they must be estates of land Or other property paying revenue directly to Government. This would include the holding of a minor ryotwari pattadar. The Regulation provided for the appointment of gardians by the Zillah Court to minors succeeding as hens to the joint possession of estates and Regulation X of 1831 extended this provision to the heirs of single as well as joint possessors of estates, but it was afterwards repealed in 1890 by the Guardians and Wards Act so far as it related to the property of minors not under the superintendence of the Court of Wards. This may have been in consequence of the decision in The Petition of Subramanyan as to the powers of the District Court over minors under Act XIV of 1858. The second section of Regulation X of 1831, which forbade the sale for arrears of revenue, accruing subsequently to his accession, of estates of minors not under the charge of the Court of Wards has remained ever since unrepealed. This includes the estates of minor sole proprietors not under the charge of the Court of Wards, like that of the plaintiff in this suit. The section and the preamble to the Regulation and the foot-note to Sect. 20 of Regulation V of 1804 make it clear that the prohibition extends to minors' estates of every description not subject to the jurisdiction of the Court of Wards, and this answers the second question referred to us. But, of course, if a minor is a member of a joint Hindu family governed by the Mitakshara Law and as such has at birth merely an undivided interest in an estate, no guardian can be appointed by Court as the manager of the family represents the family, and to such cases the Rugulation will not apply.
S. S.Quesstons answered in the negative.