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TMI Blog1938 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of the under-tenures. The appellant was plaintiff in the action; he had paid under protest the amount demanded from him by the Government and was claiming repayment. The facts are short and not in dispute. The estate in question is in the District of Murshidabad. In 1923 settlement operations were commenced and these were completed in November 1928. Thereupon the provisions of Section 114, Ben. Ten. Act, 1885, came into effect. These provisions, so far as relevant, are as follows: Section 114(1). - When the preparation of a Record of Rights has been directed or undertaken under this Chapter, in any case except where a settlement of laud revenue is being or is about to be made, the expenses incurred in carrying out the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; share was thus 9 annas per acre. 3. On 28th March 1930, the appellant purchased the estate in question, which was No. 7 in the Murshidabad Collectorate, and lay within the limits covered by the Record of Eights, in a revenue sale held under the provisions of Bengal Act 11 of 1859. At that time the patnidars had paid some part of the amounts apportioned on them, but some balances were still unpaid. In respect of these unpaid balances, the certificate procedure under the Bengal Public Demands Recovery Act 1913 came into force, in particular Section 8, which provides that on the service of notice of a certificate under Section 7 of the Act, the certificate-debtor is debarred from transferring or delivering any of his immovable property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led all the under-tenures, that is the patnis or estates of the patnidars in question, the rights of the raiyats being preserved by the Proviso to Section 37. It is not contested that the appellant duly annulled the patnidars' estates, which thereupon became void and ceased to exist. Thereupon the certificate officer purported to transfer the certificates in regard to the patnidars who were still in default into the name of the appellant and caused notices and copies of the certificates to be served on the appellant and demanded payment of the amounts from him. He paid under protest and brought the present actions for cancellation of the certificates filed against him and for the recovery of the amount so paid. The Sub-ordinate Judge de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y his purchase at a sale for arrears of revenue, was the person from whom the costs of the settlement operations were recoverable. 6. On the hearing of the appeal before their Lordships, the respondent's counsel have not sought seriously or perhaps at all to uphold the reasons given for deciding in their favour by the Courts below. They have based their right to uphold the judgment below on two grounds which do not appear to have been taken below and which certainly are not discussed by the Subordinate Judge or by the Judges of the High Court. Counsel are unquestionably entitled to uphold a judgment on any proper ground of law, but their Lordships regret that they have to decide on these new submissions without any help from the Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The power under the Section is in the most absolute terms subject only to the express exceptions set out in the Section but these are not material in this case. It seems incontestable in principle that when an interest charged is avoided and determined, the charge upon it must also cease and determine. There cannot be a charge upon nothing. The charge depends on the existence of the interest charged, just as an under-lease depends on the head lease and falls when the latter falls or is forfeited. On this ground, the respondent's first contention must fail. 9. His second contention depends on the construction of Section 114(1) and (3), Ben. Ten. Act. It involves among other difficulties reading into the Section words which are not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al case in which the patni estate is not transmitted or devolved, but annulled and determined. It may be that there is here a casus omissus, but if so, that omission can only be supplied by statute or statutory action. The Court cannot put into the Act words which are not expressed, and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court. It is said that it is reasonable that the holder of the estate from time to time who gets the benefit of the survey should have to bear the cost till it is entirely discharged and also that in practice this principle has been assumed and acted upon. That may well be so. But the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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