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TMI Blog1943 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... us irregularities which made it liable to be annulled under Section 33 of the Revenue Sale Laws. In the alternative they prayed, that as their putni was one indivisible tenure under three estates of which only one was sold, it could not be annulled under Section 37 of the Revenue Sale Laws. The suit was contested by defendant 1, the purchaser at the revenue sale. She traversed all the allegations of the plaintiff, and contended inter alia that the sale was neither irregular nor ultra vires. It was urged that the putni held by the plaintiffs was separable and even if it did include the lands of the other two estates, there was nothing in law which stood in the way of the purchaser's annulling it, to the extent that it was under Estate No. 335. 2. The trial Judge decreed the suit basing his decision on one point only, viz., that the sale was without jurisdiction. On all the other points, his findings were against the plaintiffs and he held definitely that though there was only one putni created under these estates it could be annulled so far as it related to the estate sold, under Section 37, Act 11 of 1859. Against this decision, there was an appeal taken by defendant 1 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the body of the document as well as in the schedule. The aggregate of the rentals that are mentioned separately in respect of the three touzis, has been described as the rent of the putni mahal itself; and the kists or instalments payable by the tenant as set out in the schedule are the aggregates of the kist3 shown against the touzis separately. 4. Possibly the parties desired to have the basis of calculation embodied in the document itself, and this might have been done in view of the provision in the deed, that in case of acquisition of any portion of the land by the Government under the Land Acquisition Act leading to abatement of revenue in respect of the touzi to which the land appertained, there would be corresponding reduction in the rent payable by the putnidars. As the rents were separately shown in the putni kabuliyat the reduction in rent could easily be made on the materials given in the kabuliyat itself without the necessity of any further investigation. Throughout the kabuliyat the expression putni mahal is used in singular and there, is only one security given for the tenure under Regn. VIII of 1819. Considering the document, as a whole, it seems to me that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates to the estate purchased, and in fact what Section 37 of the Revenue Sale Law contemplates is an annulment of the whole and not part of a tenure. The case, therefore, if it is held to be correctly decided, does support the contention of Mr. Sen. I think, however, that the decision is not correct; it is unsound in principle, and is not supported by the decisions upon which it purports to rely. The primary object of Section 87, Revenue Sale Law, is undoubtedly the protection of revenue. As the Judicial Committee expressed in Forbes v. Meer Mahomed Hossain 20 W.R. 44: The statutory title which the law gives to an auction purchaser is that for the protection of the revenue and in order to ensure its due payment by him and to avoid the necessity of repeated sales of the property, he is permitted to all those rights which the original settler at the date of the perpetual settlement had; and may in consequence of that, sweep away or get rid of all the intermediate tenures and incumbrances created by preceding zemindara since that date. 6. See also Mahomed Nasim v. Kasi Nath Ghosh 26 Cal. 194, Narayan Chandra v. Kasiswar Roy 1 C.L.J. 579 and Gokal Chandra v. Hara Sundari Dasi 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure certain other objects also such as the prevention of undue inconvenience and hardships which might arise from subjecting the holders of encumbrances to a multiplicity of suits by different purchasers at one sale or to suits for partial cancellation of encumbrances at the instance of some out of several co-purchasers. A leading decision on this point is Jatra Mohan Sen v. Aukhil Chandra 24 Cal. 334 where some of the previous decisions on the point are quoted in the judgment of Banerjee and Gordon JJ. It was held in this case that when there were more purchasers than one, the right to annul an under-tenure must be exercised by all the joint purchasers, and cannot be exercised by one of them. I think on this principle we can support the decisions in Sooharam v. Durga Charan 5 C.L.J. 264 and Mahamed Guran v. Basarat Ali A.I.R. 1920 Cal. 920 upon which M.C. Ghose J. purports to rely. 7. In Sooharam v. Durga Charan 5 C.L.J. 264 the plaintiff was the holder of a taluka potta under the auction purchaser of an estate with regard to a portion of the landa only which were comprised in the estate. He sued to evict an under-tenure holder, who had a tenure in respect of the lands in suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burgh, J. 9. This appeal arises out of a suit to set aside a sale for arrears of revenue of tauzi No. 835 of the 24-Parganas Collectorate, and in the alternative for a declaration that the sale cannot affect the interest of the plaintiffs who are patnidara of the mahal. The estate in question was the debuttar estate of certain deities who also were the proprietors of touzis Nos. 1078 and 1233 of the same Collectorate. The patni in suit covers the whole interests of all the three touzis and was created by a kabuliyat of 5th Aswin 1314 B.S. The case was originally contested on three main grounds, first that the Collector had no jurisdiction to hold the sale of the estate as there were in fact no arrears, secondly that there had been material irregularities in conducting the sale, and thirdly that the plaintiff's patni in any event was not liable to be annulled. The trial Court found against the plaintiffs on all grounds except the question of jurisdiction; on appeal the lower appellate Court agreed with the other findings of the trial Court, but sent the case back for taking further evidence on the question whether the sale had been held with jurisdiction. This point has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together, however, I am of opinion that it is intended to create and does create one tenure. 11. It remains to be decided whether such a tenure can be annulled, so far as it is under touzi No. 835. Mr. Gunada Charan Sen, arguing the case for the appellants, relies on an unreported decision of M.C. Ghose and Bartley JJ. in Ashamoyi Basu v. Baranagore Jute Factory, Ltd. reported in 70 C.L.J. 34. In that case there were the five estates which jointly held all the lands comprised therein, and the under-tenure was under all the estates; one only of the estates was sold. M.C. Ghose J. after discussing the case in Sooharam v. Durga Charan 5 C.L.J. 264, and a later case in Mahamed Guran v. Basarat Ali A.I.R. 1920 Cal. 920, which purported to follow the former case, observed: It appears that it has been accepted in the past that Section 37 is to be strictly construed so as to give what protection may reasonably be given to under-tenants. The section states that the auction purchaser of an entire estate shall acquire the estate free from all encumbrances and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants. Taking the words in their natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole mahal or all those lands of the mahal which are included in the taluqa potta of the respondents. 13. The later case in Mahamed Guran v. Basarat Ali A.I.R. 1920 Cal. 920 purports to follow the earlier case just considered, but the actual facts are not very clear. The suit was for recovery of khas possession of lands appertaining to a taraf, the plaintiff being the grantee of a sadar patni taluka right with the rights of an auction purchaser, apparently in the whole taraf. The Munsif held that some of the dags which were not included in the plaintiff's patni appertained to some other mahals, and he granted a decree for annulment of the interest of the defendants as to the rest. The Subordinate Judge held, referring to Sooharam v. Durga Charan 5 C.L.J. 264, that the dags not being included in the plaintiff's patni he was not entitled to set aside the defendants' tenure; but it is not clear whether he agreed with the Munsiff's finding that these dags belonged to other mahals or not. The learned Judges of this Court adopted the findings of the Subordinate Judge with the result already mentioned, and explicitly stated that on these findings the case was gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khas that is exclusive possession of an 8 annas share of the lands comprised in the estate, the claim for the avoidance of the tenures being merely ancillary. 14. This case was discussed in Kamal Kumari Choudhurani v. Chandra Roy 2 C.W.N. 229 with reference to the need for making the co-owners parties to the suit, and distinguished on the ground that in the former case actual khas possession of the land was desired, while in the later case mere power for joint collection of rent was prayed for. Thus prior to the recent case of 1936 this appears to be the only one clearly dealing with facts similar to those in the present case relating to a tenure under more than one estate, and the decision favours the view that in such a case annulment of that portion of the tenure which is held under the estate sold for arrears of revenue can be made. From the history of the sale laws it would be indeed strange if proprietors of estates could create an interest which would defeat the prime object thereof, namely the safeguarding of the public revenues. Enforcement of collection of the revenue by means of sale of estates was introduced by the British, and a fundamental necessity of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es was not any inherent right of the zamindars but one declared by the regulations and always declared as subject to the liability of cancellation on sale for arrears of revenue. Various regulations were passed in subsequent years dealing with the law as to sale of estates for arrears which need not here be discussed, until we come to Regn. 11 of 1822. As Field notes in his Introduction to his Regulation of the Bengal Code: Although the whole of Regn. 11 of 1822 has been repealed by more recent legislation, many of its most essential provisions are to be found in the existing Sale Law. (Paragraph 104). 17. In this regulation we find the first exception to the rule that all encumbrances were avoided on sale, and by it khudkhast kadimi rayats or resident and hereditary cultivators were not to be ejected by the auction purchaser, though their rents might be enhanced after service of notice. (Field, para. 104). A similar exception is now repeated in the proviso to Section 37, Land Revenue Sales Act, 1859. The next important enactment was Act 12 of 1841. Section 27 of which provided that: ...the purchaser of an estate sold under this Act, for the recovery of arrears due on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be annulled, we are to hold that there was a serious leakage in this long-standing legislation for protection of the revenue. By adding to a tenure under one estate some small token holding under another estate the tenure so created is to become immune from the stringent provisions of the sale law. It can be stated confidently that such a : result was certainly never intended; the only question is whether we are forced by the wording of Section 87 to come to a finding that such a leakage exists. I think this is clearly not so, the operative part, so to speak, of Section 37 must be held to be all inclusive, and all the exceptions are as stated explicitly in that section. A tenure under two or more estates cannot be held to be protected because of an omission in the operative part of Section 37 to provide for its annulment. In short the portion of such a tenure which is held under the estate sold must, for the purpose of Section 87, be held to be either an encumbrance within the meaning of that section or else must be deemed to be itself an under-tenure for the purposes of the section. The rest of the operative part of Section 87 is wide enough to cover anything that the propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided and it is otherwise binding on us in this appeal. 22. The facts which are not in dispute in the second appeal which has been referred to this Full Bench are these: Certain idols named Sree Sree Gopal Nath Jew and others were the proprietors of Touzi Nos. 335, 1078 and 1233 of the 24 Parganas Collectorate. On 22nd September 1907, the shebaits of these idols granted a patni lease of the lands covered by these three touzis in favour of the predecessors-in-interest of the appellants. On 23rd September 1936, one of these three touzis namely, touzi No. 335, was sold for arrears of revenue and was purchased by the respondent. The appellants then brought a suit in the Court of the Subordinate Judge at Alipur to have the sale set aside. In the alternative they prayed for a declaration that the revenue sale did not affect their patni interest in the lands of the touzi sold. The trial Judge set aside the revenue sale. On appeal by the respondent to the lower appellate Court, the decree of the trial Judge was set aside and the case was sent back to the trial Judge to determine whether the revenue sale was without jurisdiction. The trial Judge, after the remand, came to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have not been held at a fixed rent; Provided always that the rents of such tenures shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures. Thirdly - Talukdari and other similar tenures created since the time of settlement and held immediately of the proprietors of estates, and farms for terms of years so held when such tenures and farms have been duly registered under the provisions of this Act. Fourthly - Leases of lands whereon dwelling houses, manufactories, or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk. And such a purchaser as is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was originally an unfair rent, and if the same shall not have been held at a fixed rent, equal to the rent of good arable land for a term exceeding twelve years; but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1850), they said: The statutory title which the law gives to an auction purchaser is that, for the protection of the revenue and in order to ensure its payment by him and to avoid the necessity of repeated sales of the property, he is remitted to all those rights which the original settler at the date of the perpetual settlement had; and may, in consequence of that, sweep away or get rid of all the intermediate tenures and incumbrances created by preceding zemindars since that date. 26. We have to bear these general observations in mind in deciding the questions before us. If we find that of two rival interpretations of Section 37 of the Act of 1859, one would be in accordance and the other at variance with what their Lordships have said, we should be justified in preferring the former, unless for compelling reasons we must accept the latter. A compelling reason would be that the Act had expressly saved a particular right or interest from being swept away by the revenue sale. The interpretation for which the appellants contend would conflict with the observations which we have quoted, for it would leave on the estate an interest with which the dafaulting proprietor had burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved: It is perhaps worth pointing out that the words, unless the context otherwise requires' which we find in the consolidating Act of 1929 are not to be found in the amending Act of 1928. I attribute little weight to this fact, for in my opinion some such words are to be implied in all statutes where the expressions which are interpreted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character. 28. We have no doubt that the definition of tenure in the Act of 1868 was not intended for the interpretation of Section 37 of the Act of 1859, for if only transferable tenures were meant in Section 37 - which would be the result of applying the definition - it would follow that whereas the auction purchaser could annul transferable tenures, he could not annul those which were not transferable; in other words, he could annul the larger grant, but not the smaller. This would be absurd. The context therefore requires that the word under-tenure in Section 37 of the Act of 1859 should not be interpreted by applying the definition in the Act of 1868. If there is no definition, the appellants argue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation. This is the general meaning of the term. But, as implied in Turner Morrison Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931 the term as used in Section 37 is exclusive of what-ever is an under-tenure within the meaning of the section. The taluk in question in that case was such an under-tenure. If, however, the patni interest in question in the present case is not an under-tenure within the meaning of the section (as the appellants in the first branch of their argument contend that it is not), there is no ground left for excluding it from the scope of the term encumbrance. Turner Morrison Co., v. Monmohan Chowdhury ('31) 18 A.I.R. 1931 affords no authority for the proposition that even where a subordinate interest is not an under-tenure within the meaning of Section 37 but is merely in the nature of an under-tenure, it cannot be classed as an encumbrance. To stretch the actual decision in that case beyond its true limits and to saddle the estate in the auction purchaser's hands with a new class of interests which are neither void as encumbrances nor voidable as under-tenures within the meaning of Section 87, would be to invite conflict with those gen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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