1. This suit is instituted for a declaration of right and confirmation of possession of an estate, consisting of three mouzas in the District of Mozufferpore. The plaintiff says that the estate was sold at an auction-sale held on the 15th April 1886 in execution of a certificate, purporting to be issued under Bengal Act "VII of 1880 and dated the 13th January 1886, and that the defendant became purchaser of the estate at this sale for the price of Rs'. 560. The estate is alleged by the plaintiff to be of the value of Rs. 40,000.
2. The certificate was issued in respect of road-cess stated to be due to the amount of Rs. 43-4-C.
3. Substantially the plaintiff's case, in the plaint, is that at the time of the auction-sale he had paid up all demands due by him; that the certificate was not in due form under the Act; that no notice under Section 10 of the Act was served on the plaintiff; and that the person to whom it is (he says) untruly alleged to have been given had no authority to receive it on his behalf; that the processes under which the sale is said to have taken place were not valid and were not duly issued and executed. Fifthly, repeating his allegation of payment, he submits that on such payment the certificate of January 13th, 1886, ought to have been cancelled- and he charges that the proceedings had against him were taken in collusion with the 2nd defendant; the purchaser. He says that he has filed a petition under Section 12, but having faint hope of a remedy by that means also tiles this suit. He says that although his actual possession has not been disturbed, symbolical possession has been taken by the purchaser; and the security of his title has been thereby affected: and he asks for a declaration that the certificate of January 13th, 1886, was of no effect, and that the sale was void as the money due for road-cess and public works-cess had been paid up: for confirmation of his possession, and an order that the defendants, 2nd and 3rd parties (the 3rd as benamidar purchaser for the 2nd), have acquired no right in the estate.
4. The Secretary of State was made 1st party defendant. No written statement was filed on his behalf, and he did not appear either in the Court below or before us. He is made a party respondent in this appeal.
5. The lower Court dismissed the suit and the plaintiff appeals.
6. The estate was purchased by the plaintiff in 1882. It was formerly the property of Bibi Amina, Bibi Nesar Fatima and Munzurul Fatima. Plaintiff purchased under a deed of sale from the Land Mortgage Bank, and his name was registered, under the Land Registration Act, in 1884. Plaintiff says in his evidence that he paid the cesses for the year 1884. The cesses, in respect of which the certificate which is impeached was issued, were those falling due in 1885; they are three in number, inasmuch as the sudder jumma of the estate is Rs. 94-0-10; and under the Board's rules, for estates below Rs. 100, three kists are fixed for the year, namely, where the Fasli era prevails, June 7th, January 12th, and March 28th. The total of Rs. 43-4-6 is made up of Rs. 38-2-0 for cess, Rs. 1-15-0 for interest, and Rs. 3-3-6 for commission. The plaintiff' is a person of wealth. His income from zemindaries and indigo factories is about Rs. 1,50,000 a year. We have not, however, to regard either such considerations of apparent hardship as seem involved in the sale for Rs. 560 of an estate worth Rs. 40,000 in order to enable the State to recover from a person of great wealth the sum of Rs. 43-4-6. We have only to consider whether the proceedings taken under the Public Demands Recovery Act, 1880, were in accordance with law; and, if not, whether they were, as the plaintiff contends, defective to such a degree, that either the certificate should be cancelled and the sale set aside under Section 20, or the sale be set aside because not made under the Act at all.
7. The Act (Section 7) provides that "when any arrears of the following public demands are unpaid by the person liable to pay the same, that is to say" then follows in Clauses 1 to 9 inclusive, a specification of the numerous demands to which the provision applies, to which are added, by Section 98 of the Cess Act (Bengal Act IX of 1880), demands coming due under that Act], "the Collector of the district may make under his hand in Form 2 in the second Schedule annexed to this Act a certificate of the amount of such arrears so remaining unpaid, and may cause the same to be filed in his office."
8. Section 8 provides that "subject to the provisions of this Act every certificate made under the provisions of section 7 shall, as regards the remedies for enforcing the same, and so far only, have the force and effect of a decree of a Civil Court," and that in cases other than cases (7) mentioned in this Act "the Secretary of State for India in Council shall be deemed to be the decree-holder and in all the cases mentioned the person therein named as debtor shall be deemed to be the judgment-debtor."
9. Section 10 provides that "when a certificate has been filed in the office of the Collector under the provisions of section 5 "(which relates to arrears due in respect of revenue)" or Section 7 "(which relates to demands payable to a person other than the Collector)" such Collector shall issue to the judgment-debtor a copy of such certificate and a notice in form No. 4 in the second Schedule annexed to this Act. From and after service of such notice such certificate shall bind all immoveable property of such judgment-debtor situate within the jurisdiction of such Collector in the same manner and with like effect as if such immoveable property had been attached under the provisions of Section 274 of the Code of Civil Procedure."
10. Sections 12 and 13 provide that when the person served with notice denies his liability he may "within thirty days after service of such notice, or where, no such notice has bean duly served within thirty days after execution of any process for enforcing such certificate, file a petition denying his liability before the Collector by whom such certificate has been made," and (Section 13) "such Collector shall fix a day for hearing the petition and determine whether the petitioner is liable for the whole or any part of the amount for which such certificate was made," and may set aside or vary the certificate accordingly. The Collector is to have all the powers of a Civil Court in hearing, &c, the petition: and the provisions of the Civil Procedure Code shall apply to the Collector exercising these powers. The Collector (Section 15) may refer any such petition for hearing to any Deputy Collector, or Assistant or Extra Assistant Commissioner.
11. Section 18 provides that
"every certificate made under the provisions of...or section 7, ...may be enforced and executed upon the expiry of one month after service of the notice mentioned in Section 10,"or as soon as any petition under Section 12 has been heard and determined.
12. Section 19 provides that
"such certificate may be so enforced and executed by all or any of the ways and means provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money,"Ac, &c, &c, all duties, powers and authorities by the Code conferred on the Court being exercised by the Collector, or subject to his control by any Deputy Collector, &c.
13. These are the powers conferred by the law upon the Executive Officers. The protection given to the subject is first the right to present a petition under Section 12: and the rights given to him by Section 8, Clause (b), and by Section 20.
14. By Section 8 (b) the judgment-debtor may, at any time within one year after the service of the notice given to him under Section 10, bring a suit to contest his liability to pay the amount stated in the certificate and to have it cancelled: but no such suit shall be entertained unless the judgment-debtor has stated in a petition under Section 12 the ground on which he claims to have the certificate cancelled, or unless having omitted to state such ground in such petition, he shall satisfy the Civil Court that there was good reason for such omission.
15. By this section it is provided that no certificate duly made under the provisions of this Act shall be cancelled by a Civil Court otherwise than on the grounds:
(1) that the amount stated in the certificate was actually paid or discharged before the making of such certificate;
(2) (which we need not detail);
(3) in cases other than (2), to which the present belongs, that the amount stated in the certificate was not due by the judgment-debtor under the certificate;
(4) want of jurisdiction.
16. Section 20 enacts that, when immoveable property is sold in execution of a certificate under Section 18, and if such certificate is subsequently set aside by a competent Court, such Court may set aside such sale and may direct that the amount may be refunded to the purchaser with or without interest as the Court may direct: provided the purchaser has been made a party to the suit.
17. The matters of fact which the appellant contends for before us are: that no notice under Section 10 was served upon him; and that the arrears in respect of which the sale took place were, if due, paid to the proper person on the 28th January 1886 by the plaintiff's agent; and that "the certificate was not, as required by law, signed by the Collector. This latter point gives rise to what may be called a question of fact, owing to the circumstance that the certificate has in some way so suffered since it was filed in the Collector's Office (assuming that to have been done) that, according to the judgment of the lower Court, the place for the Collector's signature "has disappeared bodily:" and the District Judge felt himself entitled, and, therefore, (we suppose), bound to resort to the presumption that it was signed "as it undoubtedly issued from the Collector's office." There are certain other alleged defects in this certificate upon which the appellant also relied.
18. As a matter of law it was argued that, as the money was received before the sale, that sale was illegal: first, because of the express declaration in the notice that upon payment the sale would not be held; and, second that as the certificate is by the Act placed on the same footing as a decree, a sale could no more take place under a satisfied certificate than under a satisfied decree; and Section 22 (b) was cited to show that, upon payment, it falls on the Collector in the case of a certificate, and not, as in the case of a decree, upon the judgment-debtor, to cause satisfaction to be entered up.
19. The second contention of the appellants in point of law was that (under the provisions of the Act VII of 1380) the certificate was not duly made under the provisions of the Act: that for that reason no execution could issue upon it as a decree; and that the sale made under colour of execution of such certificate was absolutely void; and further, as we understood, that, as no notice under Section 10 of the Act was given, nothing in the nature of an attachment of the property ever took place, and that no proceedings in execution under the sections of the Civil Procedure Code made applicable by Section 19 were ever had at all: and that there fore the sale was bad.
20. We shall first refer to the matters of fact in dispute. And at the outset we do not understand that it was seriously contested that, at the date of the issue of the certificate, January 13th, 1886, the three kists for 1885 were unpaid. This indeed is recorded as admitted by the plaintiff's pleader before the lower Court.
21. As to the payment of the money on January 28th, or, at any rate, on or before February 1st, we are quite unable to agree with the lower Court. We think it proved that the money was paid by Munraj Sahai, the plaintiff's agent, to Laldhari Singh, Tehsildarof Road Cess for the District. Exhibit 1 is a receipt signed by Laldhari for the sum of Rs. 431-9-0: Exhibit 2 is the counterfoil of it. Munraj says he paid this money to the Tehsildar, took No. 1 as a receipt, and wrote on the counterfoil (No. 2) the memorandum which is on the back of it. In both, the payment purports to be made on account of road-cess due in respect of Mouza Ghouspore Road Cess Register No. 3887, which is the correct cess number of the estate. Munraj is not cross-examined. Laldhari (still at the time of his examination, 6th January 1887, Tehsildar of Road Cess) says, he received, on the 28th January 1886, about Rs. 175 from Munraj, at Mozufferpore, on account of road-cess payable plaintiff on account of several mouzas. He corroborates Munraj as to Exhibits ] and 2: the latter, the counterfoil, he kept. He produces a challan (Exhibit 3), which was given to him about the payment of the money. At the top of the challan is the date February 1st and the signature of the Road Cess Clerk. The challan is numbered 41. It states the money is remitted by Bibi Amin a (the first in order of the names of the former owners), through Laldhari Singh, on account of cess of Mouza Ghouspore, etc., Cess Towzi 3887. Dabi Pershad, Treasurer for three years, says that Exhibit 3 bears his initials. He is not cross-examined as to when or under what circumstances he put them there.
22. Exhibit 3a is an extract from the Treasury Register for February 1886; it is produced by Dabi Pershad or on requisition to him. It records the payment of Rs. 43-9-0 for cess from Laldhari Singh, and notes the No. 41 of the challan relating to this payment, which, as we have noticed, specifies the mouza in respect of which the cess was paid. He says the date is February 1st, 1886. There are many civilians on that date entered as issued, against which there are no payments. Issur Chunder Sen, Deputy Collector and Treasury Officer, in charge of the Road Cess Department, says that Exhibit 2 bears the signature of Khirod Nath Mookerjee, Head Clerk. He says that No. 1, and (as we understand the note of his evidence, which, no doubt, is a little obscure) No. 2 also, bears, not his written signature but his stamped signature, which, until lately, he appears to have used in these books when issuing them. No evidence is adduced which appears to us to displace the effect of this evidence. Jogesswar Sahai is called. He is one of the Tehsildars of Road Cess. He was given a cheque book (as it appears these books are called) K. In it there is the counterfoil and receipt relating to the demand in respect of which the certificate was issued. The cheque" as well as the counterfoil is still there, unseparated. The amount is Rs. 43-4-6, which, and not Rs. 43-9-0, is that for which the certificate was drawn up. It bears a note written by him "agreeably to the order of January 13th, 1886, case sent up for proceedings under act vii of 1880." He is not asked and does not say, what, or by whom, was the order of January 13th referred to in this note. He speaks of a report: if he made one, it is not deposed to or produced. It was of course on this (Exhibit Ka) that the certificate was issued. By whose order it was issued, or under what circumstances, there is no evidence whatever. He says: "I went there at the end of December and the beginning of January. Gujraj Sahai said: 'I don't know anything. If it is due, I am going to write to the mukhtear. He will pay it.' He says a little before this, that Laldhari was one of the Tehsildars of Chukla Gargone, in which Ghouspore is, in September 1885, and he has still been (in service). The mouzas are not divided among the Tehsildars...I never said that our mehal was placed under the charge of two Tehsildars."
23. There is one more piece of evidence which we think we should expressly notice. We cannot, of course, refer to every item of evidence in the case. It is Exhibit H, an entry from the Register of the Road Cess Department. It records as of the 1st February the payment of the items making up Rs. 43-9-0. But this entry is placed subsequent to one of the date, February 25th. It is put in by the defendants; but no evidence is given about it; the date when it was written up does not appear: whether after February or how long after, if so, it is left to speak for itself.
24. Upon the whole evidence, that which we have referred to and that which we have been obliged not to expressly notice, we think the money was paid as the plaintiffs' witnesses depose; that we must hold it to have been paid, on the fair balance of the evidence. There is reason to think, notwithstanding Issur Chunder Sen's expression of opinion, that different "cheque books" were issued to different Tehsildars, which in some oases, at any rate, contained, each of them, counterfoils and receipts for the same demand. It is true that Laldhari's "cheque" No. 1, is dated July 17th, for cess down to September: and Issur Chunder says kist money is never asked for in advance. But then the document is unexplained by evidence on the part of the defendants, and the payment of it sworn to, or corroborated, by officials still in the employment of the Cess Department, and by the entries which were not seriously impeached by any evidence brought from that Department.
25. Exhibit H may, or may not, be suspicious, according to the nature and history of it, as to which there is no evidence: and there might well have been. It is true, that Exhibit 1 is for some annas more than Exhibit Kit, or the certificate based on it. Which of them is correct, there is no evidence to show. They differ, not in the amount of cess, but in the charges for interest and commission; mysterious items in these cess bills, which often attract the attention, but as to which one of us can say that in no case relating to cess demands has he ever read any evidence showing how the interest and commission were computed. It may be that in Laldhari's bill, interest was computed to a later period; and that in Jogesswar's larger charge was made for commission, on account of the calls made by him for collection. But this is conjecture: the defendants have not thought fit to develop any case on the point: and we think it, and the comment on H, wholly insufficient to justify the Court in disregarding the strong affirmative proof of payment. Then Jogesswar's evidence, and also the service of the notice under Section 10 on the plaintiff (treating the latter as established, as the defendant urges that it is) would make the payment of the money soon after highly probable, ft is improbable that, if this formidable certificate was served, or notice of it served, on the plaintiff personally, in respect of property so lately purchased by him and of such value, that he would have neglected to give directions about it: while the omission to pay up until then the cess for 1885 may, perhaps, be explained by this estate having been, as Jogesswar states, in ticca.
26. We hold payment proved. Upon payment, it became the duty of the Collector under Section 22 to enter satisfaction upon the certificate: and also in the Register kept under Section 21.
27. Section 22 creates a different law as to the satisfaction, both entry of it and proof of it, from that existing under the Civil Procedure Code: under which it is practically cast on the judgment-debtor to see that satisfaction shall be entered, and satisfaction not entered up is treated as, qua satisfaction of the decree, a nullity. But Section 22 casts on the Collector the duty of entering satisfaction, and nothing prevents the judgment-debtor under this formidable certificate of procedure from, at any rate, proving satisfaction of the certificate, if it be satisfied. That being so, we have a sale made in execution of a satisfied decree at a tremendous undervalue: and applying the principles laid down in the case of Abdul Hye v. Naivab Raj B.L.R. Sup. Vol. 911, we hold that the sale was absolutely void; even assuming that the bona fides of the purchaser was as unquestionable as his good fortune was in buying an estate at l/80th of its value.
28. No one can in this country pretend to do more than arrive at a conclusion upon conflicting testimony as a matter of probability. If we should be in error in the conclusion that the money was paid, we are deceived by a conspiracy involving both forgery and perjury, such that, if it existed as the District Judge must suppose, it would show that the Road Cess Department in this district is corrupt to the core: a startling state of things, could we suppose it to exist, considering the tremendous powers given by the Act for enforcing the demands made out by the officers of that Department. We would refer here also to the following passage in Mohan Ram Jha v. Baboo Shib Dutt Singh 8 B.L.R. 235:
"It is clear also, from the provisions of Bengal Act VII of 1868, that the certificate is to have the effect of a decree, and that for sales in execution thereof, the whole of the procedure prescribed by Act VIII of 1859 must be adopted. Therefore, as in the case of execution of decrees, if a party, before the sale takes place, comes into Court and pays the amount of the debt due or tenders the amount of the debt due, the Court is bound to receive the money and to abstain from selling the property attached; so in the case of the property which has been under the certificate for a Government demand, if the proprietor either before or at the time of sale come into Court, and before the property is actually sold, tender the amount of the demand, the Collector is bound to hold his hand and to abstain from selling the property."
29. Apart, however, from the question of payment, we think the sale must be set aside as not made under a certificate duly made under the provisions of the Act.
30. The Act is an extremely stringent one: the policy of it we do not of course discuss. But we suppose it to be, that, as a matter of executive convenience, demands of a public nature, the justice of which has been enquired into and certified by officials of high rank and unquestionable integrity, may properly enjoy, for the enforcement of them, the very exceptional privileges accorded to them by this Act; but subject to whatever safeguards are provided by the Act by the procedure laid down in it.
31. We think, therefore, that that procedure must, according to the familiar rule in construing and applying enactments of this nature, be strictly followed. The certificate does not bear a signature. It did not bear a signature on August 20th, 1P86, as the note upon it shows. That note does not show that at that date the place for the signature had then been removed, as from the District Judge's judgment, seems now to be the case. We say "seems," for, in the slovenly fashion so common in some parts of this Presidency, a copy only, and not the original, has been sent up with the record. In the state in which the document was when put in evidence, we think it lay on the defendants to show that it had been duly signed. Upon the evidence, we must find as to this in the negative. There is not a tittle of evidence, as there might and ought to have been, to show by whose order it was issued, and by whom it was signed, if it was signed by any one, which we greatly doubt. In the notice under Section 10 put in by the defendant, which, according to the form given in the schedule, is to be issued by the Collector, there is a blank where the name of the Collector ought to he. If the Collector had signed the one, it may be supposed he would have signed the other. This defective notice confirms the conclusion to be drawn from the certificate itself; under what circumstances the certificate has been tampered with, and in what way, there is no evidence: not a question was put by Court or defendant, on the subject; one of the many respects in which the form in which this case comes before us, is imperfect and unsatisfactory. Having regard to these circumstances, we must hold that the certificate was not signed by the Collector or by any person authorised to sign it under the provisions of the Act.
32. Then the certificate was not addressed to the plaintiff. The second column of it, in place of being filled up as it ought to be, contains the following description: "Bibi Amina and Bihi Nesar Fatima and Munzurul Fatima within the property purchased by Babu Gujraj Sahai." This defect runs through all the subsequent proceedings. In the notice to the Nazir, Exhibit 5, in execution, dated 18th March 1886, the heading is as follows: "Under the orders of the Deputy Collector of Zillah Mozutferpore. The Government (Decree-holder v. Bibi Amina and Bibi Nesar Fatima and Bibi Munzurul Fatima, in connection with the property purchased by Baboo Gujraj Sahai (Debtors)."
33. Nay, the memorandum of bids of sale, Exhibit 7, describes the property sold as:
Memorandum of bids of sale of the right and interest owned by Mussam-mat Bibi Amina, Bibi Nesar Fatima and Bibi Munzurul Fatima, in connection with the property purchased by Babu Gujraj Sahai, in Mouza Ghouspore, Chuck Mujahed, Chuckla Garjoul, Pergunnah Bisara, bearing Towzi No. 9656 and Cess No. 3887.
34. The sale-certificate to the third defendant has not been put in: for all we can tell, all that was purchased was the "right and interest owned by" the ladies, and not the plaintiffs' estate at all.
35. We think that these two defects are fatal to the certificate. There am others, which have been dwelt on in argument before us. But these are enough. We think it absolutely incumbent on the Courts, when considering the validity of sales under this Act, to rigidly require an exact compliance with the formalities prescribed by the Legislature: to do so at least as rigidly as (he-Courts at home have, for instance, in copyright cases and in many others, insisted on exact obedience to prescribe formalities. In this kind of case, the matter is of infinitely, greater importance: as this appeal will illustrate.
36. It is said that the plaintiff could not have been misled, if he got the notice; as he of course knew that he was the real owner. That is true, in this case perhaps: and if he did get the notice his prompt payment is well accounted for, But that is not the question. The question is, shall slovenly disregard of the formalities prescribed by the Legislature be treated as immaterial, or as invalidating the acts done under colour of its authority? As in the case of Lala Mobaruk v. The Secretary of Stats for India I.L.R. 11 Cal. 200, we hold that the non-compliance with the provisions prescribed by the Act prevented the Collector from being clothed with the powers conferred on him by the Act, and that the sale was not a sale under execution of a certificate duly made under the provisions of the Act, and was absolutely void.
37. The judgment of Mr. Boxwell, the Commissioner, in appeal from the Deputy Collector, was put in, without objection, as evidence. We have not relied on it: but we are glad to find that our conclusion is the same as that arrived at by him: that the certificate was not signed and that the money was paid, as plaintiff contends. We are wholly unable to agree with the lower Court in treating para. 8 of the plaintiff's petition to the Commissioner as amounting to an admission that the money was not paid. It is going far to treat such a statement in such a document as evidence to be seriously relied on. We must express our regret that the District Judge should have cast a most serious imputation in his judgment upon the plaintiff's son, who is Vice-Chairman of the Road Cess Department. He says, 'it is part of defendant's case that "he" has been able to manipulate the books." There is not a tittle of evidence to show that he could do so; not a suggestion in the evidence that he did do so: and no evidence that they ware tampered with at all. We feel it our duty to say that there is nothing in the evidence to afford the smallest justification for this most serious charge; which is none the less a charge, apparently influencing the District Judge, because put as a recital of part of the defendant's case.
38. Holding the sale void on the two grounds of satisfaction before sale and of the invalidity of the certificate, we think it unnecessary to go into the other grounds of fact or of law, argued by the appellant.
39. We wish to add a remark upon the argument addressed to us, that as Act XI of 1859 is to be read with this Act, the procedure prescribed and the powers conferred under that Act are applicable (and particularly sections 6.1 and 182 of that act) to the recovery of public demands of the nature arising in this case. We wholly dissent from this view. It has at no time been attempted by the Legislature to place demands in respect of cess on the same footing as revenue demands to which Act XI of 1859 applies. They have been always kept carefully separate in legislation: and for obvious reasons, although the absolute powers of the Collector under Section 6 have been habitually, under administrative orders from the Board of Revenue, used to enforce payment of cess demands amongst others.
40. We allow the appeal, set aside the decree of the lower Court, and make a decree in favour of the plaintiff in the terms of his prayer. The declarations made will be as between the Secretary of State as well as between him and the other defendants. The plaintiff must have his costs throughout as against all the respondents, including the Secretary of State. It is true that the Secretary of State has not been represented in this matter, but the Government has supported the validity of the proceedings in this case. Two months' time was obtained in the Court below to enable a written statement to be filed on behalf of the Secretary of State, and we think that under the circumstances, having regard to the source of the errors which have led to these proceedings, the Government ought to be liable for costs quite as much as the other defendants. Whether the Government will also think itself bound to consider the position of the defendant, the unsuccessful purchaser, it is not for us to say.
1 Notifications of sale to be issued, and no tender after latest day of payment to stop the sale.
[Section 6: The Collector or other Officer duly authorized to hold sales under this Act shall as soon as possible after the latest day of payment fixed in the manner prescribed in section III of this Act, issue notifications in the language of the district, to be affixed in his own office and in the Court of the Judge of the district, specifying the estates or share of estates which will be sold as aforesaid, and the day on which the sale of the same will commence, which day shall not be less than fifteen or more than thirty clear days from the date of affixing the notification in the Office of the Collector or other Officer as aforesaid. And if the Government revenue of any estate or share of an estate to be sold exceed the sum of five hundred rupees, a notification of the sale of such estate or share of an estate shall be published in the Official Gazette. Except as hereinafter provided, all estates or shares of estates so specified shall, on the day notified for sale, or on the day or days following be put up to public auction by and in the presence of the Collector or other officer as aforesaid, and shall be sold to the highest bidder. And no payment or tender of payment, made after sunset of the said latest day of payment shall bar or interfere with sale, either at the time of sale or-after its conclusion.] 2 Estates may be specially exempted from sale.
Proviso.
[Section 18: It shall be competent to the Collector, or other Officer as aforesaid, at any time before the sale of an estate or share of an estate shall have commenced, to exempt such estate or share from sale: and in like manner it shall be competent to the Commissioner of Revenue at any time before the sale of an estate or share of an estate shall have commenced to exempt such estate or share from sale, by a special order to the Collector or other Officer as aforesaid to that effect in each case; and no such sale shall be legal if held after the receipt of such order of exemption. Provided, however, and it is hereby enacted, that the Collector or other Officer as aforesaid or the Commissioner shall duly record in a proceeding the reason for granting such exemption; and provided also that an order for exemption so issued by the Commissioner shall not affect the legality of a sale which may have taken place before the receipt by the Collector or other Officer as aforesaid of the order of exemption.]
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