The revenue authorities sold certain lands in accordance with the powers given by section 28, Act I of 1886 (Madras), for arrears of Abkéri revenue due by its owner. It was purchased by the seventh defendant in this suit, and the question is whether the seventh defendant took it free of all incumbrance, or, whether he took it subject to a mortgage which had been created on it prior to the sale. We are clearly of opinion that the seventh defendant took the land subject to the mortgage. In Ramachandra v. Pitchaikanni(1) it was decided that, when land is sold under section 10 of the Madras Abkári Act III of 1864 for arrears due by an Abkéri renter, the purchaser at the sale does not take the land free of all incumbrances as in the case of a sale for arrears of land revenue under the provisions of the Revenue Recovery Act II of 1864 (Madras), and excellent reasons are given for that decision.
The only question is whether the change in the wording of section 28 of the present Act which corresponds with section 10 of the old Act, effects a change in the law.
Section 10 of the old Act enables the abkári arrears to be recovered “in like manner as for the recovery of arrears of land revenue.” Section 28 of the present Act says that the abkári arrears may be recovered “as if they were arrears of land revenue.”
We do not think that there is any real difference in the meaning of the two provisions. The same question lately arose in regard to the provisions of section 7, clause 1(a), of the Land Improvement Loans Act XIX of 1883 and in regard to section 30 of the Income Tax Act II of 1886, in which the powers given for the recovery of the Government dues are, in the same words, as in the present Abkári Act. In both cases this Court decided that those words did not render the sale free of prior incumbrances (Chinnasami Mudali v. Tirumalai Pillai and the Right Honourable the Secretany of State for India and Kadir Mohideen Marakkayar v. Muthukrishna Ayyar(2)).
In addition to the reasons that are stated in those cases, we may add that to hold that a sale of the land for an arrear of abkári rent would have the effect of discharging all prior incumbrances, would open a wide door to fraud on bonâ fide mortgagees.
We agree with the Judge that the plaintiff did not apply to set aside the sale and there is therefore no limitation.
We dismiss the second appeal with costs two sets.