Authored By : Syed Nasim Ali, Pal

Syed Nasim Ali, J.

1. These two appeals are against two decrees of the SubordinateJudge of Hooghly dismissing two suits instituted by the appellants in the FirstCourt of the Subordinate Judge at Hooghly for the reversal of sales of twoPatni Taluks, viz., Lot Rampura and Lot Haripur in the district of Hooghlyunder the Bengal Patni Taluk Regulations of 1819. The material provisions ofthe Patni Regulations are these:

Section 8. First - Zamindars, that is, proprietors underdirect engagements with the Crown, shall be entitled to apply in the mannerfollowing for periodical sales, of any tenures upon which the right of gellingor bringing to sale for an arrear of rent may have been specially reserved bystipulation in the engagements interchanged on the creation of the tenure.

Second - On the first day of Baisakh, that is, at thecommencement of the following year from that of which the rent is due, thezamindar shall present a petition...to the Collector, containing aspecification of any balances that may be due to him on account of the expiredyear, from all or any talukdars or other holders of an interest of the naturedescribed in the preceding clause of this section.

The same shall then be stuck up in some conspicuous part ofthe cutcherry with a notice that, if the amount claimed be not paid before thefirst of Jeth following the tenures of the defaulters will on that day be soldby public sale in liquidation.

A similar notice shall be stuck up at the sadar cutcherry ofthe zamindar himself, and a copy or extract of such part of the notice as mayapply to the individual case shall be by him sent to be similarly published atthe cutcherry or at the principal town or village upon the land of thedefaulter.

The zamindar shall be exclusively answerable for theobservance of the forms above prescribed, and the notice required to be sentinto the mufassal shall be served by a single peon, who shall bring back thereceipt of the defaulter, or of his manager, for the same, or, in the event ofinability to procure this, the signatures of three substantial persons residingin the neighbourhood, in attestation of the notice having been brought andpublished on the spot.

If it shall appear from the tenor of the receipt orattestation in question that the notice has been published at any time previousto the fifteenth of the month of Baisakh it shall be sufficient warrant for thesale to proceed upon the day appointed.

In case the people of the village should object or refuse tosign their names in attestation, the peon shall go to the cutcherry of thenearest munsif, or if there should be no munsif, to the nearest thana, andthere make voluntary oath of the same having been duly published; certificateto which effect shall be signed and sealed by the said officers and deliveredto the peon.

Section 10 - A person shall attend on the part of thezamindar, with a particular statement of the payments made up to the day ofsale on account of the balance of each advertised lot, together with thereceipt for, or certificate of, the notice directed to be published in themufassal, nor shall any lot be put up to sale until the statement producedshall have been inspected, and the existence of a balance for the yearascertained therefrom, nor until the receipt for the notice shall have beenread; the observance of which forms shall be recorded in a separate rubakari tobe held upon each lot sold.

Section 13. First - With reference to the injury that may bebrought upon the holder of a taluk of the second degree by the operation of thepreceding rules, in case the proprietor of the superior tenure purposelywithholds the rent due from himself to the zamindar after having realised hisown dues from the inferior tenantry, it is deemed necessary to allow suchtalukdars the means of saving their tenures from the ruin that must attend sucha sale; and the following rules have accordingly been enacted for this purpose.

Second - Whenever the tenure of a talukdar of the firstdegree may be advertised for sale in the manner required by Clauses (2) and (3)of Section 8 of this Regulation, for arrears of rent due to the zamindar, thetalukdars of the second degree, or any number of them, shall be entitled tostay the final sale, by paying into Court the amount of balance that may bedeclared due by the person attending on the part of the zamindar on the dayappointed for sale; in like a manner they shall be entitled to lodge moneyantecedently, for the purpose of eventually answering any demand that mayremain due on the day fixed for the sale, and, should the amount lodged besufficient, the sale shall not proceed, but, after making good to the zamindarthe amount of his demand, any excess shall be paid back to the person orpersons who may have lodged it.

Section 14. First - Should the balance claimed by a zemindaron account of the rent of any under-tenure remain unpaid upon the day fixed forthe sale of the tenure, the sale shall be made without reserve, in the mannerprovided for in Sections 9 and 10 of this Regulation; nor shall it be stayed orpostponed on any account, unless the amount of the demand be lodged. It shall,however, be competent to any party desirous of contesting the right of thezemindar to make the sale, whether on the ground of there having been nobalance due, or on any other ground, to sue the zemindar for the reversal ofthe same, and, upon establishing a sufficient plea, to obtain a decree withfull costs and damages.

Second. - In cases also in which a talukdar may contest thezamindars demand of any arrear, as specified in the notice advertised, suchtalukdar shall be competent to apply for a summary investigation at any timewithin the period of notice; the zamindar shall then be called upon to furnishhis kabuliyat and other proof at the shortest convenient notice, in order thatthe award may, if possible, be made before the day appointed for sale.

Such award, if so made, will of course regulate the ulteriorprocess; but, if the case be still pending, the lot shall be called up in itsturn, notwithstanding the suit, and, if the zemindar or his agent in attendanceinsist on the demand, the sale shall be made on his responsibility, nor shallit be stayed or the summary suit be allowed to proceed, unless the amountclaimed be lodged in cash, or in Government securities, or in currency notes,by the talukdar contesting the demand; and if such deposit be not made, thealleged defaulter will have no remedy but by a regular action for damages andfor a reversal of the sale unless he makes an application under Section 14A.

2. The case of the appellants is that the sale of the twopatnis is liable to be set aside on the following grounds: (1) that thepetitions of the zamindar (respondents) under para. 1 of Clause (2) of Section8 were not presented to the Collector of the district; (2) that the noticesrequired to be served under paras. 2 and 3 of Clause (2) of Section 8 wereessentially defective; (3) that the said notices were not published at theKutehery of the appellants as required by para. 3 of Clause (2) of Section 8;(4) that the peon who served these notices did not bring back signatures ofthree substantial persons residing in the neighbourhood in attestation of thenotices having been brought and published at the Kutehery of the appellants asrequired by para. 4 of Clause (2) of Section 8; (5) that the declaration of thepeon that the notices were duly published under para. 6 of Clause (2) ofSection 8 was not made immediately after the publication of the notices. Thefacts which have a material bearing on the first ground are these: Thepetitions of the zamindars under para, 1 of Clause (2) of Section 8 wereaddressed to the Collector of the Hooghly District. They were received by theSenior Deputy Collector of Hooghly on 17th April 19S9 = 3rd Baisakh 1346 B.S.(1st and 2nd Baisakh being holidays). On that very day the Senior DeputyCollector asked the record keeper to report at once. On 21st April theCollector of Hooghly issued a notice fixing 15th May 1989 = 1st Jaista 1346B.S. for sale. On the last mentioned date the patnis were sold.

3. The argument of the appellants in support of the firstground is this : Presentation of the petitions to the Collector under para. 1of Clause (2) of Section 8 means (1) filing of the petition by the zamindar and(2) receipt of the said petition by the Collector himself. Receipt of the petitionis the first act of the Collector preparatory to or connected with the saleunder the Patni Regulations, although some of the duties of the Collector of adistrict can be delegated to the Senior Deputy Collector under Section 8 ofRegulation 4 of 1821 and Sections 20 and 21 of Regulation 8 of 1833. The dutyof receiving petition presented for sale of patni tenures could not bedelegated to the Senior Deputy Collector who is not a Collector within themeaning of section 1 of Bengal Act 8 of 1865. In these cases the petitions ofthe zamindar for sale were admittedly received not by the Collector himself butby the Senior Deputy Collector. Consequently, there was no valid presentationof the petition to the Collector within the meaning of para. 1 of Section 8 ofthe Patni Regulations. The patni sales in question are therefore liable to beset aside. Section 8 of the Patni Regulations as originally framed required thezamindar to present a petition "to the civil Court of the district and asimilar one" to the Collector. Section 9 as originally framed contained aprovision that the sale should be made by the Registrar or Acting Registrar ofthe civil Court or in his absence by the person in charge of the office of theJudge or Magistrate of the district within whose jurisdiction lands may besituated.

4. By Section 1 of 1850 the petitions for patni sales wererequired to be presented only to the Collector and the petitions to the civilCourt of the district were dispensed with. By Section 1 of Act 8 of 1865 the Collectorwas defined as "including all officers exercising the whole powers of theCollector of a district." By Section 3 of the said Act "all actspreparatory to or connected with the sale of patni taluks" which by thePatni Regulations the Judge was required to perform were directed to beperformed by the Collector as defined in the said Act. At the time when the Actcame 4 into force the civil Court of the district was not required to receivepetitions for patni sales. Act 8 of 1865, therefore, did not touch theCollectors power to receive petitions presented to him by the zamindar for thesale of the patnis under the Patni Regulations as originally framed. TheCollector, therefore, to whom the zamindar has got to present this petition isnot a Collector as defined by Section 1 of Act 8 of 1865 and need not have allthe powers of a Collector of a district. It appears from the evidence in thiscase that the power of the Collector to receive petitions by the zamindar forthe sale of patni were delegated to the Senior Deputy Collector who receivedthe petitions of the zamindar in question. It cannot be said, therefore, thatthe petitions of the zamindar were not presented to the Collector as requiredby para. 1 of Clause (2) of Section 8 of the Patni Regulations. As regards thesecond ground the contention of the appellants is this: the notices required tobe served under paras. 2 and 3 of Clause (2) of Section 8 were essentiallydefective inasmuch as (a) the zamindars did not deduct Rupees 3-11-8 from the patnirent of Lot Rampura which they were bound to do according to Clause 14 of thepatni lease on account of the acquisition of 1.35 acres of land appertaining tothe said patni taluk and (b) the interest claimed on the arrears of rent wascharged at the rate of 12 per cent., although under the law they could recoverinterest only at the rate of 6 per cent Clause 14 of the patni lease is inthese terms:

If any land within the ambit of this patni is acquired bythe Government for Railway line or for other purposes, I shall get one-half ofthe compensation money that will be awarded therefore and you Moharaja shallget the other half and I shall not be competent to make any plea for abatementof rent; and if you Moharaja get any abatement of jama by raising objection youshall grant to me abatement accordingly.

5. The meaning of the words "by raising objection"in this clause is not very clear. The award of the land acquisition shows thatthe abatement of revenue to the extent of Rs. 3-11-9 was granted to the zamindarfor acquisition of a portion of the land covered by the Patni Lot Rampura. Theaward, however, does not indicate the date from which the abatement is to takeeffect. The evidence in this case indicates that at the time when the zamindarfiled the petition for sale of patni Lot Rampura they were not aware of theaward by which the abatement in the revenue was made. I am, therefore, not in aposition to say that the zamindar was bound to grant abatement of patni rent asclaimed by the patnidars - appellants. It is not disputed in this case that inthe notices the demands included interest on arrears of rent which was chargedat the rate of 12 per cent, although the zamindars were entitled to claiminterest only at the rate of 6 per cent, in view of the amended provision ofSection 67, Ben. Ten. Act. On 12th May 1939, that is, three days before thedate fixed for sale the appellants filed petitions before the Collectorobjecting to the rates of interest charged by the zamindar under para. 1 ofClause (2) of Section 14. They also stated in their petition of objection thatthe demand of rent for the Patni Lot Eampura was excessive inasmuch as it didnot give credit from the arrears of patni rent the sum by which the totalrevenue of the touzi under which the patni is held was reduced on account ofthe acquisition of some of the lands of the touzi and the patni under the LandAcquisition Act which they were bound to do under the terms of the patni lease.The Collector thereupon asked both parties to produce necessary papers on 15thMay 1939, i.e., the date fixed for the sale. On this last mentioned date thezamindar reduced the rate of interest to 6 per cent, in the accounts of thebalance of the two patnis filed under para. 2 of Section 10. The objections of thepatnidars relating to the abatement of rent were not pressed before theCollector and the patnis were sold on that date and purchased by the zamindars.

6. The position therefore is that there was an excess demandon account of the rent of Patni Lot Kampura and Patni Lot Haripur respectivelyin the notices required to be served under paras. 2 and 3 of Clause (2) ofSection 8. Clause (2) of Section 14 entitles the patnidars to contest thezamindars demand of any arrear as specified in the notice under Section 8before the Collector at any time within the period of notice. If the zamindarasserts this demand as correct the Collector summarily investigates into thematter and if he finds that the claim is excessive he can reduce the originaldemand by an award before the date fixed for the sale. If the patnidar does notpay the reduced amount before the date fixed for the sale, the zemindars rightand, the Collectors power to proceed with the sale on the date fixed for saleare not affected. The object of specifying the demands in the notices is togive the defaulting patnidar an opportunity for saving the patni by payingwithin the period of notice the original demand or the demand that is found dueby the Collector, Clause (2) of Section 13 lays down that the under, tenantsmay stay the final sale by paying into Court the amount of balance that may bedeclared due by the person attending on the part of the zemindars on the dayappointed for sale or by lodging money antecedently for the purpose of eventuallyanswering any demand that may remain due on the day fixed for the sale. Thecontention of the zemindar respondent is this: The amount of excessive interestmentioned in the notices was reduced on the date of the sale by the Collectoron the admission of the zemindar. It was not open to the zemindars thereafterto proceed with the sale if the patnidars or the under-tenants had paid thereduced demands immediately before the sale. The defaulting patnidars if theywanted to save their tenure from sale they could have done so by payingimmediately before sale the amounts which were declared due before the salecommenced. The under-tenants could have protected their interest similarly. Thepatnidars of the under-tenants were therefore not at all prejudiced.

7. In Nawab Khaja Ahsanulla Khan Bahadur v. Hurri ChurnMozoomdar 20 WB. 86 their Lord-ships of the Judicial Committee approved thefollowing opinion of this Court:

The object of the publication of this notice is to give notonly to the defaulting putnidars, but durputnidars, mortgagees, and otherencumbrancers, notice of the sale. It may well be, that the putnidar,durputnidar, mortgagees or other encumbrancers would have available, for thepurpose of saving the estate from sale, 75 per cent, of the arrears due but notthe whole. We are of opinion that if the zemindar chooses to bring intooperation the provisions of Clause (3), Section 8, and to get a half yearsrent by means of this regulation, he must strictly comply with the conditionslaid down in the section. We think that all the requirements in Clause (2) ofSection 8 must be imported into Clause (3) of that section mutatis mutandis,and, therefore, we think that the serving of the notice is a conditionprecedent to the sale being held, and that the notice so served must be a goodnotice : that is to say, it must be a notice which shall put all partiesconcerned in saving the tenure from sale in possession of the knowledge of whatreally they will have to do if they desire to save the tenure, and would bepurchasers in possession of information as to the amount they will have tospend if they wish to purchase the property.

8. In this case it was contended before the JudicialCommittee on behalf of the zamindars that if the form of the notices was not shownto have prejudiced the patnidars or their interest in any way, the noticescannot be said to be substantially defective. Their Lordships of the JudicialCommittee, however, repelled this contention and observed that the question asto whether the patnidars were prejudiced or not was immaterial inasmuch as thedefect in the notice arose upon the notice which the zemindar himself gave,that the amount of demand mentioned in the notice was a material and essentialpart of the notice and could not be dispensed with and that the defect was atthe root of the whole proceedings. In view of this decision of the JudicialCommittee, it is not open to me to go into the question as to whether in viewof the events that had happened in these cases the appellant patnidars or theirinterests were in any way prejudiced on account of the excessive demands in thenotices required to be served under the regulation. I therefore hold that thesales in question are liable to be set aside on account of the fact thatamounts in excess of the amounts legally due to the zemindar from the patnidarwere demanded in the notices required to be served under the regulations.

9. The photographs [Exs. I and I(2)] and the evidence ofD.W. 8 Bhawani Charan Bhattacharjee, who was deputed by the zemindars clearlyprove that petitions by the zemindar for sale together with the noticesrequiring the defaulting patnidars to pay off the arrears of patni rent beforethe date fixed for sale were affixed on two huts, one in village Chikaranda withinMahal Rampura and another in village Jagamohanpur in Mahal Lot Haripur whichwere being used as Kutcheris of the defaulting patnidars. The evidence on theside of the defendants in these two suits shows that after affixing the noticesthe peon did not bring back the receipt of the defaulting proprietors or theirmanagers or signatures of three substantial persons residing in theneighbourhood in attestation of the notices having been brought and publishedon the spot as required by Section 8 of the Patni Regulations. In these cases,however, the peon made voluntary oath of the notices having been duly publishedbefore the nearest Munsif as well as the nearest Thana Officer and broughtcertificates to that effect signed and sealed by the said officer and deliveredto him. Although it has been clearly proved that the notices were dulypublished at the Kutcheri of the defaulting patnidars the evidence in this casedoes not show that the mode of proof laid down in paras, 4 and 6 of Clause (2)of Section 8 of the Patni Regulations was strictly followed by the zamindar.The question, therefore, is whether this failure of the zamindar to followstrictly the statutory mode of proof is a sufficient ground for reversing thepatni sales. In Sona Beebee v. Lall Chand Chowdhury 9 W.R. 242 Sir BarnesPeacock said:

The material part of Clause (2), Section 8, Regulation 8 of1819...is that the notice required to be sent into the Mofussil shall beserved. The zemindar is exclusively answerable for the observance of the formaprescribed by that clause. The subsequent part of the section which prescribesthat the serving peon shall bring back the receipt of the defaulter, or of hismanager, or in the event of his inability to procure it, that he shall obtainthat which by the Regulation is substituted for it, is merely directory and ifnot done, does not vitiate the sale, provided the notice is duly served.

10. In Ram Sabuk Bose v. Monmohini Dossee 2 I.A. 71 theirLordships of the Judicial Committee agreed with this view of Sir BarnesPeacock. In Maharajah of Burdwan v. Sm. Tara Soondari Debi 9 WB. 619 LordFitzgerald said:

Their Lordships desire to point out that the due publicationof the notices prescribed by the Regulation forms an essential portion of thefoundation on which the summary power of sale is exercised, and makes thezamindar who institutes the proceeding exclusively responsible for itsregularity. Their Lordships do not, however, intend at all to controvert adecision in Sona Beebee v. Lall Chand Chowdhury 9 W.R. 242, to which theirattention was called, of Sir Barnes Peacock when he filled the office of ChiefJustice of the High Court of Bengal, to the effect that if the notice itselfhas been duly published, if it is not a matter of controversy, if the fact was ascertainedthat it was published, then one would not regard any objection either to theform of the receipt or the absence of the receipt itself. That decision wasalluded to in a case before this tribunal in Ram Sabuk Bose v. Monmohini Dossee2 I.A. 71 in which their Lordships say they are disposed to agree with thejudgment of the High Court confined as it is to cases where there is proof thatthe notice was duly served. That again, is where there is no controversy as tothe fact of the service. It seems to their Lordships that the object of theRegulation was that due service or publication should not be left matter ofcontroversy.

11. In Ram Sabuk Bose v. Monmohini Dossee 2 I.A. 71 LordHobhouse said:

The formalities which the zemindar has to observe and theevidence by which the observance has to be proved are two totally distinctthings. Although Sir Branes Peacock decided in Sona Beebee v. Lall ChandChowdhury 9 W.R. 242 that if the observance of the requisite formality wasdistinctly proved it was not necessary to have the mode of proof, which theregulation directs. In Maharajah of Burdwan v. Sm. Tara Soondari Debi 9 WB. 619this committee found that the question whether the requisite formality has beenobserved depended on conflicting evidence, but that the statutory mode of proofhad clearly not been followed, and they held that the decision must go againstthe zemindar whose business it was to follow the prescribed method. They didnot differ from Sir Barnes Peacock nor did they hold that the statutory proofwas the only proof that could be given.

12. In view of these decisions of the Judicial Committee, Iam of opinion that although the statutory mode of proof relating to the serviceof the notices at the cutchery of the defaulting patnidar was not strictlyfollowed by the zemindars in these cases the patni sales in question are notliable to be reversed as it has been clearly proved by the other evidence inthe case that these notices were duly served. The result, therefore, is thatthe appeals are allowed, the decrees of the trial Judge dismissing the suitsare set aside and the suits are decreed. The putni sales in question are setaside. Parties in these appeals will bear their own costs throughout thelitigation.

Pal, J.

13. These two appeals are by the plaintiffs in two suits forsetting aside the sales of two patni taluks held under Regulation 8 of 1819.The plaintiffs were the holders of the two distinct patni taluks one in mahallot Rampara and the other in mahal lot Haripur, under the defendants on thebasis of two different kabuliyats executed in 1300 and 1805 B.S. These patnimahals fell into arrears and there were two separate proceedings for sale underRegulation 8 of 1819 for the arrears of rents of 1345 B.S. These were Astamcases Nos. 8/451 and 8/452 of the year 1939-40 in the Hooghly Collectorate. Thecase No. 8/452 related to the putni mahal lot Rampara of which the sale tookplace on 15th May 1939. The suit No. 22 of 1939/18 of 1940 and F.A. No. 205 of1940 relate to this case. F.A. No. 206 of 1940 arises out of the suit No. 23 of1939/19 of 1940 and relates to the sale of the putni mahal, lot Haripur sold inthe case No. 8/451 of 1939/40 of the Hooghly Collectorate on the same date,i.e. on 15th May 1939. The allegations in the plaints that will be relevant forthe purposes of the present appeals are contained in paras. 7 to 9 of both theplaints. In para. 9 they alleged that no notice or sale notifications, etc.,were at all served in the cutcherry of the Collector or in the Sadar cutcherryof the zamindar or in the cutcherry of the plaintiffs or in the mofussil or inthe disputed mahal as provided in Regn. 8 and that all these were deliberatelysuppressed. They further alleged that the Astam petition in question and thesale held on the basis thereof did not conform to the provisions of Sections 8and 10 of the Regulation. In para. 7 they alleged that the defendants in theirAstam petition inflated the amount of the arrears actually due by claimingimproper, excessive and illegal interest and Astam costs. In their writtenstatements the defendants denied these allegations and in para. 16 gave thedetails as to the service of notices thus:

...Application for Astam sale for 1345 B.S. was duly filedin the Collectorate and it duly remained hung up there. A similar notice dulyremained hung up in the defendants Sadar Cutchery also. An officer of thedefendants went to Chikaranda Cutcherry and served the Istahar at the CutcherryGhur. He served Istahar at the plaintiffs Sadar Cutchery at Jani and theplaintiffs officer Rasik Mollah took the two copies of Istahar one relating tothe case in respect of Rampara and the other relating to the case in respect ofHaripur and granted receipt under his own signature. Then he want to Rampara andeffected service. There he (defendants officer) took signatures of substantialpersons, and he took photograph at the time of service and sent postcard to thesub-manager of the defendants from Mofussil and swore two affidavits atChandipur Thana and Srirampur Munsiffs Court. So, it would be satisfactorilyand conclusively proved that notice was served in the Mofussil.

14. As regards the allegations in para. 7 of the plaint, thedefendants in para. 2 of their written statements admitted, that in the originalclaim interest charged was in excess of what was legally recoverable, but thatthe same was reduced subsequently. They stated:

The Bengal Tenancy Act being amended, the claim of interestwas to some extent higher, for which the plaintiffs filed objections in theCollectorate, and these defendants thereupon submitted an account wherein theyreduced the amount of interest to a sum which was even less than that claimedas justly due to them on account of interest. Under the Patni Regulation thezemindar is to submit such account at the time of the sale, which is held inaccordance therewith. In that account no improper, excessive or illegalinterest or Astam cost was claimed. The sale which was held on the basis of thesaid account is not at all illegal or fraudulent and it is not liable to be setaside in any way.

15. It may be noticed here that the relevant amendment ofthe Bengal Tenancy Act was by B.C. Act VI of 1938 which came into force on 18thAugust 1938, long before the petition for sale under Regn. VIII of 1819 waspresented. Though not pleaded in the plaint the plaintiffs for the first timeat the hearing of the suits urged that the entire sale proceedings were bad,having been initiated by the presentation of the petition for sale under Section8 (second) of the Regulation, not to the Collector, but to the Senior DeputyCollector. The learned Subordinate Judge held:

(1) That the petition was presented to the Collector withinthe meaning of the section though it was the hand of the Deputy Collector whichreceived it in the first instance;

(2) That there was no defect in the publication of thepetition with a notice in the cutcherry of the Collector.

(3) That the notice was duly published at the Sadarcutcherry of the defendants (zamindar).

(4) That for reasons of their failure in previous cases onthe question of publication of the notice is the mofussil the defendantsappeared to have taken extraordinary precautions in the present proceedings;(a) there were diaries recorded by the thana officers of Chanditola thanawithin the jurisdiction of which the mahals under Bales were situate, postingarrival in and departure from the mahals of the person acting as peon for thepurposes of the publication (Ex. D); (b) there were photos (Ex. I to I (3))taken of different places of Service at the time; (ej it was not denied thatthe peon went to the thana and made reports embodied in the diaries; (d) in theMahal Bampura there was admittedly a Cutcherry of the defaulter in the VillageChikrandi; the notice was served in the cutcherry at Chikrandi; (e) in theMahal Haripur, there admittedly is a cutcherry of the plaintiffs atJagamohanpur; the notice was served in the cutcherry at Jagamohanpur; (f)considering the extraordinary precaution that was taken by the defendants inthe matter of the service of the process, the different modes of service atdifferent places and the evidence of the witnesses placed before him thelearned Subordinate Judge was decidedly of opinion that the notices weresubstantially served at the mahals of the defaulting tenures.

(5) That the original demand included interest at higherrates. These matters were the subject of consideration in the objections thatwere filed by the plaintiffs in the Astam proceeding and seeing that there wasa change of law in respect of the rate of interest effected by the amendment ofSection 67, Bengal Tenancy Act, the claim in respect of the interest wasordered to be reduced and there was therefore an amendment of the claims by thedefendants setting right any defect in that way.

16. On these findings the learned Subordinate 1 Judge upheldthe sales and dismissed the suits.

17. Mr. Bose appearing in support of the appeals urged thefollowing points:

(1) That the sale held was vitiated by the fact that thevery initiation of the proceeding for the sale was without jurisdiction, thepetition not having been presented to the Collector as required by Section 8(second) of Regulation 8 of 1819 and Section 8, Bengal Act, 8 of 1865.

(2) That the notice was not stuck up at the Sadar Cutcheryof the zamindar himself as required by Section 8 (second) of the Regulation.

(3)(i) That a copy or extract of the notice : (a) was notstuck up as a matter of fact at the cutchery upon the land of the defaulter asrequired by Section 8 (second) of the Regulation; (b) was not published therein the manner laid down in Section 8 (second) of the Regulation; (n) That thepeon did not comply with the requirements of the section in (a) procuring thereceipt of the service of the notice; or (b) procuring the signature of | threesubstantial persons residing in the i neighbourhood in attestation of thenotice having been brought and published on the spot; or (c) going to theCutcherry of the nearest Munsif and getting the required certificate.

(4)(a) That as regards the sale of lot

18. Rampura the notices and the sales were bad in lawinasmuch as the balances specified as due to the zamindar were in excess of thebalance actually due. As regards the first of the above grounds urged by Mr.Bose it appears that the zamindar in the present case addressed his petitionunder Section 8 of Regulation 8 of 1819 to the Collector (EX. A) and filed thesame on 17th April 1939, but the same was received by a Deputy Collector who onthe same date made the following order on the petition itself "R. K. toreport at once." "R. K." evidently meant record-keeper. Thisorder was apparently made in view of B. 82 of the Rules made by the Board, ofRevenue purporting to be under the Revenue and the Putni Sale Laws. These rulesare not made in exercise of any statutory power and have no statutory force.Rule 82 says that:

... Every application under Section 8, Regulation 8 of 1819,should be referred on receipt to the record-keeper for report. If theapplicant, according to the record-keeper, is not the recorded proprietor or aregistered manager of the Estate, the Collector shall reject application unlesshe is satisfied that the applicant is the proprietor or a manager appointed bya Collector, the Court of Wards, or by any Civil or Criminal Court and hasapplied for registration within six months of his succession as proprietor orhis appointment as manager as the case may be.

19. The very next order is made by the Collector himself on21st April 1939 after the report of the record keeper and that order related toan act preparatory to or connected with the sale. It ran thus: "Issuenotice fixing 15th May 1939 corresponding to 1st Jaistha 1846 B.S. forsale." The petition went before the Deputy Collector under thecircumstances explained by D.W. 1, Kali Charan Mukherjee, the pleader whopresented the petition on behalf of the zemindar. The pleader says:

The petition was received by the Senior Deputy Collectorunder the order of the Collector. There was an order written on a paper hung onthe wall of the office of the Deputy Collector that I had occasion to see . Iknew about 5 or 6 days before the filing of the petitions that the SeniorDeputy Collector would receive the petitions. I came to know this from thenotice hung on the wall of his office. It was hung in connexion with the Astamsale proceedings.

D.W. 2, Nalini Kanta Bose, the Astam clerk of the HooglyCollectorate, said:

According to the general order issued by the Collector allAstam petitions are to be received by the Senior Deputy Collector. There wassuch an order in respect of the cases of 1346 B.S.

20. The contention of Mr. Bose is: (1) that con-duct of saleunder Regulation 8 of 1819 is governed by the Bengal Act, 8 of 1865; (2) thatSection 8 of that Act lays down that all acts preparatory to, or connectedwith the sale shall be performed by the Collector; (3) that for the purposes ofthis Act, the word Collector is defined in its Section 1 and that thisdefinition does not include a Deputy Collector; (i) that the duty of theCollector prescribed by this Act cannot be delegated by him to any otherofficer; (5) that when the statute says that the petition shall be presented tothe Collector, it means that it must be offered to the Collector for itsacceptance by him and must be accepted by him; the act of acceptance is an actpreparatory to or connected with the sale within the meaning of Section 3,Bengal Act, 8 of 1865, and consequently can be done only by the Collector.Acceptance by the Deputy Collector in the present case, therefore, vitiated theinitiation. As the petition was, in the present case offered to the DeputyCollector for his acceptance, no matter why and under whose authority and bywhose direction, and as a matter of fact was accepted by him, it was presentedto the Deputy Collector on 17th April and was not presented to the Collector onthat date at all and as that was the statutory date for presentation to theCollector, there was no proper presentation in this case and consequently nosale proceeding was competent.

21. In support of the proposition that the acceptance of thepetition was an act preparatory to sale within the meaning of Section 3,Bengal Act, 8 of 1865, Mr. Bose referred us to the decision of this Court in UCal. 7156 (Mookerjee and Cuming JJ.) where the question for decision waswhether Clause (2) of Section 15 of Regulation 8 of 1819 was affected bySection 3, Bengal Act, 8 of 1865. It was held that the expression "actspreparatory to or connected with the sale" did not include the act whichthe District Judge was enjoined to do by Section 15 (2) of the Regulation. Thestep contemplated by that section is to be taken after the sale had becomefinal and conclusive for all purposes. Here the purchaser being opposed by someintermediate holders in his attempt to realise rents from the cultivators ofthe lands comprised in the tenure purchased by him applied to the DistrictJudge to issue a proclamation under Section 15 of the Patni Regulation, 8 of 1819.The District Judge took the view that this was an act connected with the salewithin the meaning of Section 3 of the Bengal Act, 8 of 1865. The High Courtreversed his decision. In the course of the judgment Mookerjee J. observed:

22. Instances of acts preparatory to or connected with ( thesale were contained in Sections 8 and 9 of the Regulations as originallyframed. Section 8 required the zamindar, when he desired to sell a putni forarrears of rent, to present a petition to the civil Court of the District and asimilar one to the Collector. Section 9 contained a provision that the saleshould be made by the Registrar of the civil Court or, in his absence, by theperson in charge of the office of Judge or of Magistrate of the District. Thesewere clearly acts preparatory to or connected with the sale, and the effect ofSection 3 was to render these provisions nugatory and to transfer the functionsto the Collector.

23. The relevant portion of Section 3 of the Bengal Act, 8of 1865, runs as follows:

All acts preparatory to, or connected with, the sale whichby Regulations 8 of 1819 and 1 of 1820, the Judge is required to perform, shallbe performed by the said Collector.

24. So (1) the act in question must be an act preparatory toor connected with the sale; (2) the act must be the one which by Regulation 8of 1819 and 1 of 1820, the Judge is required to perform. Clause (2) of Section8 of Regulation 8 of 1819 was originally in the following terms:

On the first day of Bysakh, that is, at the commencement ofthe following year from that of which the rent is due, the zamindar shallpresent a petition to the civil Court of the district and a similar one tothe Collector containing a specification of any balances that may be due to himon account of the expired year from all or any talukdar....

Section 9 of the Regulation ran as follows:

All sales of saleable tenures applied for under the rules ofthis regulation shall be made in public cutcherry by the Registrar or actingRegistrar of the civil Court or, in his absence, by the person in charge of theoffice of Judge or of Magistrate of the district within which the lands may besituated; the land shall be sold to highest bidder....

25. The mode of sale prescribed by Regulation 8 of 1819 wasextended by Regulation 1 of 1820 to sales of patni tenures for the realizationof arrears of rents by any legal process other than that prescribed by els. (2)and (3) of Section 8 of that Regulation and the Regulation of 1820 gave theconduct of all such sales (including the sale under the Patni Regulation) inthe following terms:

The same shall be conducted, after application from thezamindar, by the Registrar or Acting Registrar of the Zillah or City Court, or,in his absence by the person in charge of the office of Judge of the District,in the mode prescribed by Regulation 8 above quoted, for periodical sales.

26. By Regulation 7 of 1882 of the Bengal Code the conductof sales of the patni taluks and other saleable tenures, under Hegns. 8 of 1819and 1 of 1820, and the performance of other acts preparatory to or connectedwith such sales, were transferred to the Collector or Deputy Collector of LandRevenue or Head Assistant to the Collector or Deputy Collector, subject to anappeal as therein provided. Section 16 of the Regulation ran as follows:

First: - Such parts of Regulation 8 of 1819 and Regulation 1of 1820, as declare that the sale of patni taluks and saleable tenures, shallbe conducted by the Registrar or acting Registrar , or in their absence by theJudge or Magistrate, and which require the Judge to perform other actspreparatory to, or connected with, the sale of such talooks or other saleabletenures, are hereby modified, and such sales shall hereafter be made, and otheracts aforesaid be performed by the Collector or Deputy Collector of LandRevenue, or Head Assistant to the Collector subject to an appeal to theCommissioner of Revenue for the division, on the ground of the irrelevancy ofthe regulation as in other cases of a summary nature provided for in Section 4,Regulation 8 of 1831.

27. Then came Act 33 of 1850 which enacted:

Whereas by Clause (2), 8. 8, Regulation 8 of 1819 of theBengal Code, it is provided that zamindars shall be entitled in certain casesto apply for the sale of patni tenures on which the right of sale for an arrearof rent is reserved, by presenting a petition to the civil Court of theDistrict, and a similar one to the Collector, and whereas the petition to thecivil Court has not been presented previous to many of such sales, and it isnot necessary for protection of the patnidar, it is enacted as follows:

(1) After the passing of this Act, it shall not be necessaryfor the zemindar in any such case to present a petition to the civil Court, buta petition to the Collector shall be sufficient.

28. Thus, after the passing of this Act, 33 of 1850, therelevant provisions of Regulation 8 of 1819 stood modified to the followingextent : (1) The petition for sale was to be presented to the Collector only(Act 33 of 1850, Section 1). (2) The conduct of the sale and other actspreparatory to or connected with the sale were to be performed by the Collectoror Deputy Collector or Head Assistant to the Collector (Regulation 7 of 1832,Section 16).

29. Section 16 of Regulation 7 of 1832 was repealed by Act10 of 1861 and this repeal gave rise to doubts as. to the authority by whomputni taluks were to be sold for arrears of rent. After this repeal ofRegulation 7 of 1832 the position might become as follows : (1) The petition forsale had to be presented to the Collector only (Act 83 of 1850). (2) Theconduct of sale and other acts preparatory to or connected with the sale fellto be done by the Registrar or Acting Registrar of the civil Court or, in hisabsence, by the person in charge of the office of Judge, or of Magistrate ofthe District (s. 9, Regulation 8 of 1819, as this provision was not formallyrepealed by Regulation 7 of 1832).

30. Bengal Council Act 8 of 1865 was enacted to remove thesedoubts. By its Section 3 it was enacted:

The sale for the recovery of arrears of rent of patnitaluks...shall be conducted by the Collector of Land Revenue in whosejurisdiction...the lands lie, and all acts preparatory to, or connected with,the sale of such under-tenures as aforesaid, which by Begns.8 of 1819 and 1 of1820, the Judge is required to perform shall be performed by the saidCollector.

31. Section 1 of this Act defines the word Collector asused in this Act to include all officers exercising the full power of aCollector of a District. Thus, it seems clear that at the date when the BengalAct, 8 of 1865, was enacted : (i) it was no part of the function of any Judgeto accept the presentation of the petition. The petition had to be presentedonly to the Collector; (ii) the conduct of the sale and the performance ofother acts preparatory to or connected with the sale were the functions of theJudge under certain circumstances.

32. These functions alone were transferred to the Collectorby the Act and this transference had nothing to do with the function, if any,in connexion with the presentation of the petition. It remained the function ofthe Collector under Act 33 of 1850 and if it was possible for the Collector todelegate this function to any officer this power of delegation, if any,remained unaffected. It may be noticed here that all this time Regulation 8 of1819 stood unamended. Consequently even after this Act 8 of 1865 the Collectorshall come in only after "the Registrar or acting Registrar of a civilCourt." The function, however, of the Registrar or acting Registrar ceasedafter the enactment of Section 16 of Regulation 7 of 1882 and it did not revivein practice even after the repeal of Section 16 of that Regulation by Act 10 of1861. The Patni Regulation was amended by Act 16 of 1874 whereby the words"to the civil Court of the district and a similar one" in Section 8,Clause (2) and the words by the Registrar or acting Registrar of the civilCourt or in his absence, by the person in charge of the office of Judge orMagistrate of the district within which the lands may be situated in Section 9were formally repealed. After the above course the relevant portions of thesections stand thus:

Section 8, Second. - On the first day of Bysakh that is, atthe commencement of the following year from that of which the rent is due, thezamindar shall present a petition to the Collector , containing a specificationof any balances that may be due to him on account of the expired year from allor any talukdars or other holders of an interest of the nature described in thepreceding clause of the section. s

The same shall then be stuck up in some conspicuous part ofthe cutchery, with a notice that if the amount claimed be not paid before thefirst of Jyte following the tenures of the defaulters will on that day be soldby public sale in liquidation

Section 9 All sales of saleable tenures applied for underthe rules of this Regulation shall be made in Public Cutchery; the land shallbe sold to the highest bidder....

33. As to the power of delegation, Regulation 9 of 1833 byits Section 20 enacts:

The Deputy Collectors appointed under this Regulation are tobe in all respects subordinate to the Collector under whom they may be placed,and are required to perform all duties assigned to them by that functionary.

Section 21 of the Regulation says:

It will be at the discretion of latter officer to employthem...generally in transaction of any other part of the duties of a Collector.

34. Section 14 of Regulation 2 of 1793 enacted:

In the event of the death or removal of a Collector or ofhis absence from his station, the senior Assistant on the spot is to performthe duties of Collector, and the dewan and the public officers of theCollectorship are accordingly to obey his orders.

34. Regulation 4 of 1821, a regulation inter alia to definethe duties and powers vested in Assistant Collectors or other officers,...byClause (3) of its Section 8 provided as follows:

The Collectors of revenue are hereby authorised . todelegate to their assistants any part of their prescribed duties, which fromthe extent of their general business or other cause, they may be unable to givedue attention themselves;....

35. From a review of the relevant provisions of the variousstatutes quoted above it seems clear:

1. That the authority to whom the petition is to bepresented is provided for by Regulation 8 of 1819 itself and not by Section 3of the Bengal Act 8 of 1865;

2. That the duty, of the Collector to receive the petitionthus presented can be delegated by him to a senior Deputy Collector;

3. That the act of presentation of the petition obviously isnot one of the acts contemplated by Section 3 of Act 8 of 1865, as that sectiononly contemplates acts which by Kegns. 8 of 1819 and 1 of 1820 the Judge wasrequired to perform. The presentation was and still is required to be done bythe zemindar. Even its acceptance was required to be by the civil Court or bythe Collector;

4. That the acceptance of the petition $ presented need notbe by the hands of the Collector. It is certainly within the competence of theCollector to appoint the manner of presentation and when the petition ispresented in that manner, it is presented to the Collector within the meaningof Section 8 (second) of the Regulation;

5. That acts preparatory to or connected with the sale areto be done by the Collector and this duty may not be delegated by him toanybody else. (Section 3 of the Bengal Act 8 of 1865).

36. As regards the second point urged by Mr. Bose, we are notin a position to accept the view that the notice was not stuck up at the Sadarcutcherry of the zemindar himself. The learned Subordinate Judge who saw thewitnesses deposing and had thus an ( opportunity of noticing their demeanour inthe witness box accepted their statements and became of decided opinion that acopy of the notice was duly published at the Sadar cutcherry of the defendants.Nothing could be placed before us which will entitle us to disturb thisconclusion.

37. As regards the third point again we are satisfied fromthe evidence on record that a copy of the notice was, as a matter of fact,stuck up at the cutcherry of the defaulter on the land of the defaulting patni.The evidence on this point is quite satisfactory, and, we are in perfectagreement with the learned Subordinate Judge in this respect. As has beenpointed out by the learned Subordinate Judge, for reasons of their failures inprevious cases on the question of publication of the notice in the muffassalthe defendants took extraordinary precaution in the present proceedings. It canhardly be questioned that the peon went to the locality and took care to makethe matter as much public as possible. It is absurd to suggest that after allthis he failed to find out the Cutcherry or that he intentionally refrainedfrom going there.

38. At the same time, it must be said that the evidence onrecord does not satisfy us that the peon complied with the requirements of thestatute as to the procuration of the receipt or of the signature of threesubstantial persons of the neighbourhood attesting the service of the notice orof going to the nearest cutcherry of the Munsif. Mr. Bose contends that readingthe whole section and remembering that the Legislature uses the wordspublished and publication in connexion with the notice for the defaulterscutcherry as distinguished from the words served and service used inconnexion with the other notices: (1) the notice for the mofussil is requiredby the statute to be stuck up at some conspicuous place of the Cutcherry; (2)and this factum of the notice having been thus stuck up is required to bepublished; (a) first, by calling the defaulter or his manager to witness thisfact; (b) or failing that, by calling three substantial per. sons of thelocality to witness this fact.

39. If this is what is required by the statute for thepublication of the notice then it must be confessed in this case that thenotice has not been duly published. There is no evidence to justify the findingthat the peon attempted to publish the factum of service in this manner, thoughthere is ample evidence on record to show that the factum of service wasotherwise published in the locality in the widest possible man-ner. Mr. Bosecontends that Section 8 (second) of Regulation 8 of 1819 contemplates that thenotice sent for service at the defaulters cutcherry must be served: (1) by thesame being stuck up in some conspicuous part of the cutcherry; (2) in thepresence of the defaulter or of his manager; (3) in case the defaulter or themanager does not give the receipt then again in the presence of threesubstantial persons residing in the neighbourhood; (i) or at least afterservice by having stuck up the notice the service must be published (a) bybringing the defaulter or his manager to witness the fact; (b) in default ofthem by bringing three substantial persons of the locality to witness the fact.The contention of Mr. Bose is that the requirements of the section relating tothe procuration of the evidence of publication of the notice must be dividedinto two distinct parts; one, laying down the manner of the publicationrequired by the statute and, the other, relating simply to the procuration ofthe evidence of the publication. According to him it is only the last of theabove requirements that has been declared directory by the Courts. Therequirements relating to publication are mandatory and their non-observancevitiates the sale.

40. We are unable to read this division into theserequirements and to accept the contention that here the statute laid down theimperative manner of publication for the mofussil notice. The section nowheresays that the notice is to be published in this manner. In our opinion, so faras the service of notice is concerned, all that the section requires is that itshall be stuck up in some conspicuous part of the Cutcherry. The section onlyrequires that "a copy...shall be I by him sent to be similarly publishedat the Cutcherry." The word "similarly" refers to the mode ofservice at the Sadar cutcherry and there can be no doubt that service of thatnotice is to be simply by the posting thereof. The service will be perfectlylegal and complete as soon as it is stuck up in some conspicuous part of thedefaulters cutcherry. The word "published" refers only to this modeof service. The zemindar is made exclusively answerable for the observance ofthis form, "the forms above prescribed." The requirements of thesection as to the receipt and attestation follow this provision andconsequently as the section stands it does not make "the zamindarexclusively answerable" for the observance of the requirements as to thereceipt or the attestation. In our opinion, (1) it will be due service of thenotice if it is stuck up at some conspicuous part of the Cutcherry; (2)procuration of the receipt or attestation is no essential part of the service -is no part of the mandatory form to be observed by the zamindar; (3) it is notessential that the notice should be stuck up in the presence either of the defaulteror of his manager or of the substantial neighbours; (i) the receipt or thesignature of the attesting witnesses is required only as evidence of theservice and their non-observance may render the proof of service difficult, butwould not otherwise affect the service of the sale. All that is required isthat in order to procure evidence of the service these persons may berequisitioned to witness the already completed fact, namely that the notice hasbeen stuck up. This is only a requirement for securing the evidence of service.As was observed by the Judicial Committee in 10 I.A. 19* at p. 21,

if, immediately upon posting the notice, the peon posting itcan find the defaulter or his manager, he is bound to ask for a receipt fromthe defaulter or his manager, signed under his hand, and if he gets such areceipt there is an end to all questions as to the service. If he does not findthe defaulter or his manager, or if that person will not give a receipt then heis to call in three substantial people of the village to attest the fact, whichwill be apparent to their eyes, that the notices in question have beenpublished.

41. It is not even the requirement of the law that theservice of the notice must be proved by the evidence thus procured. The servicecan be proved by other evidence, and if so proved, it is immaterial whether theevidence of service was procured in the manner laid down by the regulation.Where a statute is passed to create duties performable by any person who bringshimself within the operation of the statute, the question often arises as towhat liability is incurred by neglect, omission, or refusal to performstatutory duties. This question usually resolves itself into the inquirywhether the provision is mandatory or directory. If it is directory, thedisobedience to the Act does not entail any invalidity. If it is mandatory,disobedience entails serious legal consequences amounting to the invalidity ofthe act done in disobedience to the provision.

42. The scope and object of a statute are the only guides indetermining whether its pro-visions are directory or imperative. In the absenceof an express provision, the intention of the Legislature is to be ascertainedby weighing the consequences of holding a statute to be directory or imperative.No universal rule can be laid down for the construction of statutes as towhether any enactment shall be considered directory only or obligatory, with animplied nullification for disobedience. It is the duty of the Court to try toget at the real intention of the Legislature by carefully attending to thewhole scope of the statute to be construed: Liverpool Borough Bank v. Turner(1860) 2 De. F. & J. 502 , per Lord Campbell L.C. In each case thesubject-matter is to be looked to and the importance of the provision inquestion in relation to the general object intended to be secured by the Act,is to be taken into consideration in order to see whether the matter iscompulsive or merely directory. In the particular case before us, the statutesecures to zemindars the extraordinary power of realising what they claim asbalance due before the claim is established in any Court of justice. Insecuring this extraordinary power the statute lays down certain formalities tobe observed by the zemindars and expressly makes them solely responsible forthe observance thereof. Where powers, rights or immunities are granted with adirection that certain regulations, formalities or conditions shall be compliedwith, it seems neither unjust nor inconvenient to exact a rigorous observanceof them as essential to the acquisition of the right or authority conferred andit is therefore probable that such was the intention of the Legislature(Maxwell on the Interpretation of Statutes, Edn. 7, p. 316.)

43. It seems clear from the provisions of Section 8 itselfthat the statute made a distinction between the two classes of its provisionsand made the observance of the earlier forms mandatory. At any rate, it mustnow be taken as the settled rule that (1) the forms mentioned before thepassage where the statute says : "The zemindar shall be exclusivelyanswerable for the observance of the forms above prescribed" are mandatoryand any material deviation therefrom will vitiate the sale; (2) therequirements as to the procuration of receipt, attestation and certificate aredirectory and their non-observance would not affect (a) the observance of thecompulsory matter or (b) the sale. In our opinion, the law is now well settledin this respect, as will appear from the decisions in 9 W. R. 242 : 2 2 I. A.71;3 10 I. A. 19* and 14 I. A. 30.6 9 "W. B. 2422 (Sir Barnes Peacock C.J., and Jackson J.) was a suit to cancel a sale under Regulation 8 of 1819. SirBarnes Peacock observed:

The material part of Clause (2), Section 8, Regulation 8 of1819, so far as this case is concerned, is that the notice required to be sentinto the mofussil shall be served. The zamindar is exclusively answerable forthe observance of the forms prescribed by that clause. The subsequent part ofthe section which prescribes that the serving peon shall bring back the receiptof the defaulter, or of his manager, or in the event of his inability toprocure it that he shall obtain that which by the Regulation is substituted forit, is merely directory, and if not done, does not vitiate the sale, providedthe notice is duly served.

44. It was found in this case that the notice was dulyserved. Sir Barnes Peacock observed that:

Under these circumstances it was not necessary for thePrincipal Sudder Ameen to find whether the peon who served the notice had orhad not duly complied with all the directions of the Regulation with referenceto what should be done after the service in verification thereof.

45. In 2 I.A. 71 (Sir Montague E. Smith) the suit wasbrought by a putneedar to set aside the sale of his putnee taluk which had beensold for arrears of rent through the Collector under the provisions ofRegulation 8 of 1819. The sale was impeached on various grounds. But one suchground only remained for consideration and that was whether the witnesses whohad signed the receipt of service of notice under Section 8 (second) at thecutcherry upon the land of the defaulter were substantial persons within themeaning of the regulation. It was found in this case that the receipt of thedefaulter could not be obtained. His gomastha was seen, but he refused to givea receipt. Thereupon, the peon obtained the signature of seven persons three ofwhom were proved to be residing in the neighbourhood. Of these three personsone was the Mundal of the defaulters mahal and another was the chowkidar ofthe village. The third was a tailor in the village. The Principal Sudder Ameenheld that

a more respectably signed document cannot be, from thecircumstances of the country (the respectable portion of every community beingat all times averse to appear in a Court of justice) expected and that areceipt signed by the three persons must be considered a sufficient proof forthe service of notice.

46. On appeal to the Judge of the 24-Par-ganas, the learnedJudge affirmed this decision upon two grounds : (1) The evidence proved thatthe three persons who were called as witnesses at the trial of the case in thelower Court saw the notice affixed to the door; they were substantial within themeaning of the law; (2) all that is required is good evidence of the fact ofthe publication of the notice on a certain date. The further directions of thelaw are intended for the guidance of the Collector only:

47. Before putting up the putnee tenure to Bale lie mustrequire proof that the notice was duly served, and the law says that such proofmust be of such and such a nature. The Collector is not required to takeevidence; he has to examine merely the written documents produced by thezamindar, and if the proof appears to be prima facie good, the putnee is soldon the responsibility of the zamindar. Then, if the putneedar has recourse tothe civil Court, the issue is not whether the proof adduced to the Collector atthe time of sale was strictly within the words of the law, but whether theevidence adduced before the Court to prove the service of notice on or before acertain date is credible and satisfactory.

48. The learned District Judge further observed:

The reasonable object of the law is that the defaultershould have timely notice of the intention to sell; and if it be proved thatsuch notice was given to the satisfaction of the Court, the number of witnessespresent, their actual status in social life, and the distance of their dwellinghouses, are points which are immaterial.

49. Mr. Beaufort was the District Judge and this decisionwas given by him before 1864, long before the decision of Sir Barnes Peacock in9 w. B. 242.2 The Judicial Committee quoted the above from the judgment of thelearned District Judge with apparent approval and also referred to and quotedfrom the decision of Sir Barnes Peacock in 9 w. B. 2422 with approval. TheJudicial Committee observed:

Their Lordships are disposed to agree with the judgment ofthe High Court as delivered by Sir Barnes Peacock, confined as it is to caseswhere there is proof that the notice was duly served. The consequences ofholding that a statutory sale of these putnees could be set aside because oneof the witnesses to the notice turned out not to be substantial, when it was infact served, would be, to give too great effect to form at the expense ofsubstance.

50. On further appeal to the High Court from the decision ofthe District Judge, Kemp and Glover JJ. at first upheld that decision on 28thJuly 1864, but reversed it on review on 18th February 1865. On review thelearned Judges held:

Now, in this case, the attesting parties are sufficient innumber, and they reside in the neighbourhood, but, with the exception of theMundal, the rest are not what can be called substantial persons. One is thechowkidar of the village, and the other a tbicka tailor. The Legislatureinvested the zemindar with the powers of bringing subordinate putnees to Bale,and made him exclusively answerable for the due observance of the prescribedprocess under which such tenures could be brought to sale. To protect theputneedar from fraud, it was enacted that the notice of sale must be attestedby three substantial persons. Now, it is clear that, unless the attesting partiesanswer to the common meaning to be put upon the word substantial, theputneedar would be wholly without remedy in case of false attestation...theword substantial means a wealthy man from whom damages could be recovered bythe putneedar, supposing the attestation to be false.

51. The Judicial Committee did not approve of this view. Itis indeed difficult to see why the putneedar will be> absolutely without anyremedy if the attesting witnesses are not wealthy enough. In case of salewithout service he has his remedy either by getting the sale set aside or bygetting damages from the zemindar. It is somewhat difficult to imagine that theLegislature had in mind the possible damages from the attesting witnesses.There is no legal obligation on the part of these persons to come and attestand if the intention supposed by the High Court be ascribed to the Legislature,then the Legislature was laying down something knowing full well that suchpersons will never be available for the purpose. The final decision of theJudicial Committee in this case was that the finding arrived at by the DistrictJudge that these were substantial persons, was one of fact which he mightproperly come to upon the evidence on record. In 10 I. A. 19* (LordFitzgerald), the question was whether a copy or extract of the notice was sentby the zemindar to be published at the cutcherry or at the principal town orvillage upon the land of the defaulter as required, by Section 8 (second) ofRegulation 8 of 1819. The Judicial Committee observed after quoting Section 8(second) from the Regulation:

That is a very important regulation, and no doubt it wasenacted for a certain and defined policy, and ought as a rule to be strictlyobserved. Their Lord-ships desire to point out that the due publication of thenotices prescribed by the Regulation forms an essential portion of thefoundation on which the summary power of sale is exercised, and makes thezemindar who institutes the proceeding exclusively responsible for itsregularity. Their Lordships do not, however, intend at all to controvert adecision to which their attention was called, of Sir Barnes Peacock, when hefilled the office of Chief Justice of the High Court of Bengal, to the effectthat if the notice itself has been duly published, if it is not I matter ofcontroversy, if the fact was ascertained that it was published, then one wouldnot regard any objection either to the form of the receipt or the absence ofthe receipt itself. That decision was alluded to in a case before thistribunal, in which their Lordships say they are disposed to agree with thejudgment of the High Court confined as it is to cases where there is proof thatthe notice was duly served. That, again, is where there is no controversy asto the fact of the service. It seems to their Lordships that the object of theRegulation was that due service or publication should not be left matter ofcontroversy. The evidence should be secured immediately afterwards, and existin writing, and be referred to by the proper officer as part of the foundationof the sale. Accordingly, if, immediately upon posting the notice, the peonposting it can find the defaulter or his manager, he is bound to ask for areceipt from the defaulter or his manager, signed under his hand, and if hegets such a receipt there is an end to all questions as to the service. If hedoes not find the defaulter or his manager, or if that person will not sign areceipt, then he is to call in three substantial people of the village toattest the fact, which will be apparent to their eyes, that the notices inquestion have been published. If ,hey object, as very likely villagers wouldobject, to be parties to the proceedings for the enforcement of a sale, then heis obliged to go to the nearest Munsif, and make a voluntary oath of the factof service, which act is immediately recorded, and forms the foundation uponwhich the officer afterwards proceeds in carrying out his sale. Thus, theevidence that the notice has been given is immediately preserved and the factis not left to be matter of controversy afterwards.

52. Their Lordships further pointed out that the presentcase differed from that before the Chief Justice of Bengal 9 W. R. 2422 andequally from the case in 2 I. A. 71,3 in this that the fact of service here wasa matter of controversy. Their Lordships observed:

We should be obliged to assume, in order to arrive at aconclusion one way or the other, either that there was a conspiracy to cheatand deceive upon the part of the plaintiff Charoo and the two Chowkidars whoare represented to have assisted in the fraud, or that there was a conspiracyon the part of the peon sent to effect this publication, who, having, it issaid, neglected his duty, conspired afterwards with a confederate to make afalse statement and forge a receipt.

53. The Court of first instance in this case held in favourof the defendant and refused to set aside the sale. The High Court reversedthis finding. The Judicial Committee observed:

It shows that not alone is the fact of publication incontroversy, but that the matter is so involved that it is difficult to come toa safe conclusion upon it.

54. Their Lordships therefore did not propose to say, uponthis controverted question of publication, on which side the weight of evidencelay, but dismissed the appeal, observing that the doubt or difficulty in thiscase was one that would not have arisen save by the neglect of thoserepresenting the I Maharaja. There was no evidence in this case save thestatement of the peon himself that the notice was ever entrusted to him forservice. The Judicial Committee observed:

There is no evidence save the statement of the Peon Khetuthat the notice was ever entrusted to him; but supposing it was entrusted tohim for publication, his duty, and that of the officers of the Maharajah, wouldhave been clear and plain. He should have ascertained when he went to make theservice that the person whom he represents to be Charoo, to whom he says hedelivered the notice, was the defaulter, or the agent of the defaulter. Heshould then have obtained his receipt, a receipt proper in form. If he couldnot obtain it he should have followed the course prescribed by the Regulation,and should at once have returned the documents to the proper officer of theMaharajah. It would then have been the duty of that officer to examine thereceipt and see that it was in all respects complete and regular as part of thefoundation ( of the title afterwards to be given by sale. Their Lordships havebefore them a copy of the supposed receipt, which appears to be enveloped inmystery from the time it was alleged to have been signed. The peon gives nohistory of it. What did he do with it To whom did he give it Where has itbeen All that is left in obscurity, and no confirmatory proof is produced fromamongst the servants of the Maharajah that the peon, having effected what healleged to be service, brought in this receipt with him, and filed it in theCollectorate or with the proper officer of the District. What is the documentitself when we come to look at it The professed signatures are at the top. Thefirst is that of Brojo Mohun Banerjee. That purports to be the name, not quitethe correct name, of the registered proprietor of the talook, who has been deadmany years, and if this had been brought to and examined by the servants of theMaharajah they must have seen that the dead man could not have signed it; thereis no doubt that they knew that this registered proprietor was not alive. Thenext signature is that of Redoz Nath Banerjee, who is put down as thekarpurdaz, meaning the karpurdaz of the dead man, Brojo Mohun Banerjee. Thisturns out to be a non-existing individual; there is no such person. Then wecome to the attesting witnesses at the foot, and they are Goburdhan Chowkidarand Gopal Chowkidar, residents of Salmula. The inference from that would bethat they were the Chowkidars of SalmulaX If there are such persons inexistence, there are no such Chowkidars at Salmula, and neither of theChowkidars of Salmula have been produced on either one side or the other. Thisdocument or receipt so produced by the peon is by no means a compliance withthe provision of Regulation 8. Their Lordships think that the absence of thatcare and attention which ought to have been shown with reference to thisdocument, and the absence of contemporaneous inquiry whether there had or hadnot been a publication of this notice, as required by the regulation, havecreated the very difficulty which the regulation was intended to prevent; andas the regulation makes the zamindar exclusively answerable for the observanceof its provisions, their Lordships are of opinion that the issue as to theregulation ought to be found in favour of the respondents.

55. In 141. A. 30 (Lord Hobhouse), the question for decisionwas whether service on the defaulter personally was sufficient or whether inspite of such service it was necessary to serve the notice at the cutcherry onthe land of the defaulter. In this case the Judicial Committee again approvedof the decision of Sir Barnes Peacock in 9 W. E. 242.2 It was observed:

The formalities which the zamindar has to observe, and theevidence by which that observance has to be proved, are two totally distinctthings. All that Sir Barnes Peacock decided was that if the observance of therequisite formality was distinctly proved it was not necessary to have the modeof proof which the regulation directs. In the case in 10 I. A. 19* thiscommittee found that the question whether the requisite formality had beenobserved depended on conflicting evidence, but that the statutory mode of proofhad clearly not been followed, and they held that the decision must go againstthe zamindar, whose business it was to follow the prescribed method. They didnot differ from Sir Barnes Peacock, nor did they hold that the statutory proofwas the only proof that could be given.

56. A careful consideration of all these cases will yieldthe following relevant results:

1. The requirements as to (a) contents of the notice, (b) placeswhere the notices are to be served, (c) the time of service and (d) the serviceitself are mandatory; those requiring the procuration of receipt, attestationor certificate are merely directory.

2. The service of notice will be complete and sufficient assoon as the notice is stuck up in some conspicuous part of the defaultersCutcherry on the defaulting putni; this service itself is referred to aspublication in the section. The word published means the same thing asserved as in the case of notice at the zamindars cutcherry.

3. The service can be proved by evidence other than what isrequired by the section to be procured by the peon, 2 I. A. 71a and U I. A.SO.5

4. When the service (a) is either not controverted (b) orthough controverted, is proved to the satisfaction of the Court by the evidenceon record, the defect or irregularity in or the total absence of the statutoryevidence (i.e. receipt, signature of attesting witnesses or certificate of theMunsif etc.) will be irrelevant consideration and will not in the least affectthe sale; 10 LA. 19;* 14 LA. 305 and 9 W. E. 242.2

5. When the service is controverted and ,the evidencealiunde of the service is evenly (balanced, the zemindar must fail, 10 LA. 19.

57. Coming now to the fourth point urged by Mr. Bose, itappears that in the petition to the Collector under Section 8 (second) ofRegulation 8 of 1819 by the defendants (zamindars), the specification of thebalances claimed as due to them included interest on the arrears at the rate ofI2i per cent I(EX. A, A,). The amount claimed was arrived at including interestat this rate and the mandatory notices required by the section mentioned thisto be the amount to be paid before the first of Jyte following, in default ofwhich, it was intimated, that tenure would be sold on that date. 1st of Jytecorresponded to 15th May 1939. On 12th May 1939 the plaintiffs contested thedemand specified in the notice advertised under Section 14 (second) of theRegulation (EX. B.B). A summary investigation was started, but no award couldbe made before the day appointed for sale. It appears that the award was madeon the date of sale reducing the rate of interest and thus reducing the claimin one case by Es. 320 and in the other case by Es. 245. The sale was held onthat very date for the reduced claims.

58. The contention of Mr. Bose is - (1) that according toSection 14 (second)(a) either the award should have been made before the dayappointed for sale or (b) the summary investigation should have been keptpending, giving the plaintiffs the opportunity of availing themselves of theprovisions regarding the stay of sale contained in the second part of Section14 (second). His contention is that had the award been made before the dayappointed for sale he would have been entitled, as of right, to pay off thereduced demand and thus to prevent the sale. If the investigation was keptpending then either the sale would have been stayed, or if the zamindar sodesired, it would have been made on his responsibility for the original demand.In such a case the plaintiffs would have been entitled to get the sale setaside by a regular suit on the admitted"*a,cts of this case. Mr. Bosefurther contends that as Section 8 (second) of the Regulation requires that thepetition should contain a specification of the balance that may be due to thezemindar, and as the balance specified in the present case was admittedly inexcess of the balance actually due, the petition itself was bad in law and thisdefect affected the entire proceedings in sale inasmuch as the demand made inthe mandatory notices thus became excessive. According to him the principleunderlying the decision of the Judicial Committee in 19 i. A. 1911 makes suchexcessive demand in the notice a vitiating cause invalidating the sale.

59. Dr. Basak appearing for the respondents contends thatthe requirement as to the specification of the balance due is not mandatory andthat an error in this will not affect the sale. Dr. Basak places the followingmatters for our consideration in this connexion : (1) Error in the matter ofaccounting is not unusual; there is possibility of dispute also in thisrespect; if any error in the amount or any successful contest by the defaulterregarding the amount due is to vitiate the proceeding then the power of salewill be rendered absolutely nugatory; the express provision in Section 14(second) to the effect that "the award made in the case of contest will,of course, regulate the ulterior process," indicates that the sale will proceedif the awarded amount be not paid and thus implies that the proceeding was notaltogether bad for this infirmity in the specification of the balance due inpetition; (2) section 10 provides for elimination of any possible error beforesale and Section 14 (second) provides for settlement of any possible dispute asto the amount claimed; (8) the statute itself contemplated the possibility ofsuch error or dispute and made provisions for safeguarding against any possiblepre-judice to the persons interested; the parties interested will all haveright to make payments even on the date of sale after the error is rectified orthe dispute is settled and thus to stop the sale by reducing the balance due tonil; for the proposition that the defaulter will have right to pay even on thedate of sale, Dr. Basak relied on the language of Section 10 as also on 41 0.w. H. 12628 ; (S. K Ghose and Patterson JJ.) 47 oal. 3879 (Mukherjee and PantonJJ.). (4) The decision in 19 I. A. 1911 is not against this view; there thesale was a midyear one, and an examination of Sections 8 (third), 10, 13(second) and 14 (first) will show that in the case of midyear sale, thedefaulter can prevent the sale by paying a lesser amount than the balance due(three-fourths of the balance) only if the payment be made during the notifiedperiod, that is, before the day appointed for the sale. On the date of sale,nothing short of the whole balance will be of any avail either to him or to theother persons interested in preventing the sale; consequently there the omittedclause in the notice was considered imperative.

60. Mr. Bose in reply contends that the petition and itscontents are made imperative by the statute and that the imperative characterof the requirement as to the specification of the balance due is borne out bythe fact that all the imperative notices are simply to notify the balance thusspecified and Section 14 (second) makes a very valuable right of the defaulterhinge upon the zamindars demand as specified in the notice advertised. If thedefaulters objection be not disposed of before the day of sale he cannot getthe sale stayed unless and until he is prepared to lodge the amount thusdemanded. Mr. Bose further contends that 8.10 does not provide for provision ofthe balance claimed except on the ground of payments made since thepresentation of the petition under Section 8 (second) and that, even assumingthat the section authorises this revision, this will simply eliminate thearithmetical errors in the accounting and will never touch ih& infirmityconsequent upon any dispute regarding any of the items. Section 14 (second) isthe only relevant provision pertinent to the question and there if the processis to continue regulated by the award made it is because of the expressstatutory provision to* that effect. That does not in the least minimize theimportance of the accurate specification in the petition under Section 8(second) and does not indicate that the Legislature intended to make thisimportant require, ment merely directory. In 19 I.A. 1911 (Lord Shand), thenotice to be served at the cutcherry of the defaulter was itself defectiveinasmuch as instead of intimating that the payment of f of the total demandwould prevent the sale as required by the terms of Section 8 (third) of theRegulation, it intimated that in order to prevent the sale the total demandmust be paid. The Judicial Committee considered this to be a fatal defect andobserved:

...A zamindar having an interest inatalook of this kind hasundoubtedly, under the provisions of Regulation 8 of 1819, a power of sale inthe case of default in. payment of the rent; but that power of sale which isgiven as a very summary remedy, and which may be exercised immediately onarrears arising, is given under important conditions the fulfilment of which isof the utmost consequence not only to the person having a right to the talook,but to all those who have rights under him; not only to the patnidars but tothe sub-lessees, mortgagees, and other incumbrancers whose rights may beaffected or extinguished. by the sale taking place It appears to theirLordships to be clear that the notice, which is a condition precedent to anysale taking place under this clause, must in all material respects comply withthe provisions of the clause, and that therefore there should be intimationmade to the debtor, in terms of the clause, not only of the balance due, but anintimation that unless the whole of the advertised^ balance shall be paidbefore the date in question, or so much of it as shall reduce the arrear,including any intermediate demand for the month of Kartick to less than fourthof the total demand of the zamindar, the sale will take place....

61. Then the following passage from the judgment of the HighCourt was quoted by the Judicial Committee with approval and their Lordshipsadopted the expression of opinion contained therein.

...The object of the publication of this notice, is to givenot only to the defaulting patnidars, but darpatnidars, mortgagees and otherencumbrancers notice of the sale. It may well be, that the patnidar,darpatnidar, mortgagees, or other encumbrancers, would have available, for thepurpose of saving the estate from sale, 75 per cent, of the arrears due, butnot the whole. We are of opinion that if the zamindar chooses to bring intooperation the provisions of-ol. (3), Section 8, and to get a half years rentby means of this regulation, he must strictly comply with the conditions laiddown in the section. We think that all the requirements in Clause (2) ofSection 8 must be imported into Clause (3) of that section mutatis mutandis,and therefore we think that the serving of the notice is a condition precedentto the sale being held, and that the notice so served must be a good notice;that is to say, it must be a notice which shall put all parties concerned insaving the tenure from sale in possession of the knowledge of what really theywill have to do if they desire to save the tenure, and would be purchasers inpossession of information as to the amount they will have to spend if they wishto purchase the property.

62. Referring to the notice required by 8.8 (second) theJudicial Committee observed:

The notice in that case ought to state, in terms of theclause, that if the full amount due, and specified in the notice be not paidbefore the date therein mentioned, the tenure of the defaulter will be sold bypublic sale. In order to have that notice in proper form it must contain, notmerely a specification of the arrears, but a notification that the sale willproceed unless payment of the rent be made within the time limited.

63. It must be noticed that save as provided in Sections 13(second) and 14A the Regulation does not make any express provision entitlingthe darpatnidars, mortgagees and other encumbrancers to make payment and thusto prevent the sale of the tenure. The principle underlying Section 108 (j), T.P. Act, may determine their liability to the zamindar and their right to makepayment may be determined by such liability. Ordinarily the zamindar as thepromisee or creditor for the rent may not be under any obligation to acceptperformance, tender or payment from anybody other than his promisor. It seemsthat the notices under Section 8 of Hegn. 8 of 1819 are intended to beinvitations to all persons interested in preventing the sale to make thepayment. This seems to follow from the decision of the Judicial Committee in191.A. 1911 and in my opinion this is one of the weighty reasons why the clause"if the amount claimed be not paid before the first of Jytefollowing" must be looked upon as imperative. Even without any suchinvitation the putnidar will have right to pay till 1 the property is sold. Thenotice for the midyear sale is imperative in another respect also. It isdirected to contain an intimation that an amount lesser than the amount duewill also suffice to prevent the sale. It may be noticed that apart from thisnotice the Regulation does not create any right in the debtor or in any otherperson interested to tender a lesser amount in order to prevent the sale. Apartfrom this invitation from the creditor the persons interested cannot make thislesser payment to prevent the sale. The ground on which a sale under Regulation8 of 1819 can be assailed is given in Section 14 (first) of the Regulationthus:

It shall, however, be competent to any party desirous ofcontesting the right of the zamindar to make the sale, whether on the ground ofthere having been no balance due or on any other ground, to sue the zamindar,for the reversal of the same, and upon establishing a sufficient plea, toobtain a decree with full costs and damages.

64. As the section stands, the grounds available for thereversal of the sale are : (1) No balance having been due, (2) any otherground. In either case the success in the suit depends upon the establishmentof a sufficient plea. So, practically, in every suit for the reversal of a saleheld under Regulation 8 of 1819 the Court is to be satisfied that the plea thathas been established is a sufficient one. It seems certain that if it isestablished that no balance was due it will always be a sufficient plea for thereversal of the sale. The very right of the zamindar to sell the property isdependent on the existence of the arrear and consequently if no arrear was due,the zamindar had no right to sell the property.

65. It seems also certain that if the mandatory formpreparatory to or connected with the sale are not strictly complied with, thenon-compliance, if established, will be a sufficient plea for the reversal ofthe sale without anything more, subject, of course, to the maxim "deminimis non curat lex" This seems to be well settled by the severaldecisions of the Judicial Committee. Thus the statute requires that in thepetition presented to the Collector the balance due should be specified and incertain cases three-fourths of the balance thus claimed should be named in thenotice as the amount payable to prevent the sale. Even if the balance due becorrectly given in the petition, but in the notice instead of demandingthree-fourths of the same, the whole is demanded, the sale held after suchnotice should be reversed without establishing anything more. The plaintiff insuch a case need only establish this defect in the notice. It is not for him toestablish that had there been no such defect he would have paid the lesseramount or that he offered the legally payable amount. The Judicial Committee in191. A. 1911 discussed how otherwise the defaulter or his under-tenants mighthave prevented the sale only to show what object the Legislature had in view inmaking these provisions mandatory.

66. In my opinion, (1) failure to observe strictly any ofthe mandatory requirements will always be a sufficient plea within the meaningof this section; (2) failure to observe any directory requirement may also be asufficient plea within the meaning of the section; in such a case what is andwhat is not a sufficient plea will have to be deter, mined by the Court withreference to the facts and circumstances of each case and the possibleprejudice suffered by the parties interested by the defect. It may be that insuch a case the sufficiency or otherwise of the plea shall have to bedetermined with reference to the prejudice of the person claiming the reversalof the sale.

67. The question before us is whether it is imperative thatthe balance due should be correctly specified in the petition presented underSection 8 (second) for the initiation of the sale, and whether the error inspecifying any amount in excess of what is actually due shall be a sufficientplea for the reversal of the sale. It seems obvious that in the notices thespecification of the amount of demand is a material requirement. In order toput all the parties concerned in saving the tenure from sale in possession ofthe knowledge of what really they have to do, it cannot be denied that theamount due is an essential item. As the regulation stands it is thespecification of the balances due in the petition under Section 8 (second)which will determine the specification in the notices. I feel, therefore, verygreat difficulty in saying that the accuracy in the specification of thebalance due is merely directory and not mandatory. In my opinion, this is amandatory provision and I feel very much relieved in seeing that this viewfinds support in the judgment of my learned brother Mitter J., in Kiran Chandrav. Brajesh Charan : AIR1940Cal306 . Referring to the decisionof the Judicial Committee in 19 I.A. 1911 my learned brother observed:

The principle which we deduce from the said decision is thatit is essential that the claim specified in the notice must not be more thanwhat in fact is claimable; for the patnidar, darpatnidar, mortgagees, and otherencumbrancers may have available to them an amount which may satisfy what wasdemandable. in law but not the excessive demand. The fact that the Astam noticewhich has to be published under Section 8 has an important significance for thedarpatnidars , under-tenure holders, mortgagees and encumbrancers and the factthat they have rights to be protected from the drastic effects of a patni salecannot, in our judgment, he ignored.

68. I respectfully agree with this view and, in my opinion,it is mandatory that the balance actually due should be specified in thepetition :under Section 8 (second) and any excess specification in this,subject, of course to the maxim de minimis non curat lex, will vitiate thesale.

69. I do not feel very much pressed with the contention ofthe respondent that there is a provision in Section u (second) for contestingthe demand and that this along with the provision therein contained that theaward made in such contest "will, of course, regulate the ulteriorprocess" would show that the ulterior sale will not be affected by theerror in the notice in this respect. We do not know how the ulterior processwill be regulated by the award. It does not follow from this provision thateven if the amount demanded be found excessive by the award, sale will be theulterior process on the defaulters failing to pay the awarded amount. I do notsee why these words may not also, be, taken as authorizing the Collector todrop the sale in case his award shows that the imperative notices containedexcessive demands. In any case, it does not follow that a sale held in such acase on the basis of the awarded balance will not be assailable on the groundof defect in imperative notices. There cannot be any doubt that the petitionshould specify the actual balance due and not what the zamindar considers to bedue. This specification is very important and any error unit will be of seriousconsequences as all the notices shall have to repeat this as the amountclaimed. Thus, if the amount claimed as due in the petition be in excess of theamount due, the sale cannot be prevented by anybody without paying the excessamount. No doubt Section 14 (second) makes some provision for the defaulterhim. self to contest the claim and get the same rectified. But none else isgiven this right and, as has been repeatedly pointed out by the JudicialCommittee, these notices are imperative not only in view of the defaultersinterest but also for the sake of many others. *

70. The fact that there are provisions for assailing theerror in the course of the proceeding does not take away from the mandatorycharacter of the particular requirement. As has been pointed out above, thepower to realise his dues by the sale of the defaulters tenure is anextraordinary power given to the zamindar. Certainly it is open to him like allother creditors to seek relief in a Court of law, get the amount due settled bythat Court and then proceed to execute that decree in the ordinary manner. Butif instead of that he desires to have resort to his extraordinary power, thereis nothing unreasonable in expecting that he should take extraordinary cautionalso, so that he may not claim anything in excess of what may ultimately befound to be actually due by a Court of law. As has been pointed out above,

where powers, rights or immunities are granted with adirection that certain regulations, formalities or conditions shall be compliedwith it is neither unjust nor inconvenient to exact a rigorous observance ofthem as essential to the acquisition of the right, or authority conferred andit it therefore probable that such was the intention of the Legislature.

71. In my opinion, incorrect specification of the balancedue is a ground available for the reversal of the sale. Section 14 (second) inmy opinion contemplates that (1) either the award should be made before the dayappointed for sale, (so that the parties interested may, as of right, make thepayment to stop the sale) or (2) if it is not possible to make the award beforethat date, the investigation should be kept pending so that the parties cantake steps under the second part of the clause. The section does notcontemplate the making of the award on the date of sale as was done in thiscase. Under the law the persons interested can stop the sale as of right onlyby making payment on a day before the day appointed for sale. An award made afterthat date is made too late to safeguard this right. If the award could not bemade before the day appointed for sale, the investigation should have been keptpending on the day of sale. In that case, in the event of the sale having takenplace in the manner contemplated by the second part of Section 14 (second), theremedy of the defaulter would have been by a regular action for damages and fora reversal of the sale.

72. In the present case, we shall place the plaintiffsexactly in that position and see if they have made out a case for a reversal ofthe sale. The section does not, in my opinion, mean that in case the saleproceeds at the instance of the zamindar and it is afterwards established thatthe contest of the claim was well-founded, the sale must be reversed. In ouropinion, the section only keeps open the remedy by a regular suit but does not,in any way, slacken the grounds of success. Even in that suit in order toobtain a decree for reversal the plaintiff must establish a sufficient plea withinthe meaning of Is. 14 (first). As I have held that the accuracy in thespecification of the balance is a mandatory requirement, the error establishedis a sufficient plea for the reversal of the sale. I, therefore, agree thatthese appeals should be allowed and I respectfully agree with my learnedbrother in the order proposed by him.

F.A. Nos. 205 and 206 of 1940.

73. The result of our decision in these two appeals is thatthe suits instituted by the, appellants have been decreed. The case of the appellantsin their plaint was that they were in possession of the disputed putnis. Theyprayed for confirmation of their possession in their plaints. The learnedadvocate for the appellants stated before us that during the pendency of theseappeals in this Court, the appellants were dispossessed by the respondentszamindars and prayed that the decrees in the two suits shall now be convertedinto decrees for recovery of the disputed putnis. The learned advocate for therespondent zamindars, however, contends that his clients were not in possessionof the disputed putnis at the date of our judgment and, consequently, thedecrees in the two suits could not be converted into decrees for recovery ofpossession.

74. The dispute between the parties before us now involvesdetermination of question of fact and it is impossible for us to determine thismatter on the materials on the record of the present case. If it is found bythe trial Judge that at the date of the judgment the plaintiff appellants werenot in possession and that the defendants respondents were in possession, theplaintiffs will recover possession of the disputed putnis from the defendants.If on the other hand, the trial Judge finds that the plaintiffs were inpossession of the disputed putnis on the date of our judgment, the decreespassed by us confirming possession will stand.

.

Dharendra Krishna Mukherji and Ors. vs. Nihar Ganguly andOrs. (06.07.1942 - CALHC)