Authored By : T. Ameer Ali, Beverley, William Comer Petheram

T. Ameer Ali, J.

1. This appeal arises out of a suit brought by theplaintiffs under the following circumstances:

2. A revenue-paying estate called mehal Sonbursa was jointlyowned by a number of proprietors, three sets of whom appear to have opened,under Section 10 of Act XI of 1859, separate accounts in the CollectorsRegister for the payment of their respective shares of the Government revenue.The plaintiffs, who were the proprietors of the remaining share of the estate,were liable for the share of the revenue in respect thereof.

3. A default having been made in the payment of the Marchinstalment of the revenue due for the share belonging to the plaintiffs, it wasadvertized by the Collector under the provisions of Section 13 of the Act forsale on the 18th of September 1890.

4. On the 16th of September the plaintiffs paid into theCollectorate the amount due and received a chalan or receipt therefor. Noorder, however, was made by the Collector under Section 18 exempting theproperty from sale. On the 18th the plaintiffs share in the mehal was put upto sale as advertized, but there being no bidders, the Collector recorded anorder in the following term (see ante p. 846):

On the same day the following notice was issued upon theother sharers in the mehal (see ante p. 846):

On the 4th and 7th of October respectively the defendantsdeposited in the Collectorate the amount of arrear for which the plaintiffsshare was advertised for sale, and on the 5th of December the Collector gavethe defendants, as purchasers of the plaintiffs share, a certificate underSection 14 of the Act. The plaintiffs preferred an appeal to the Commissioner,who rejected the same on the 10th of March 1891.

5. They thereupon brought this suit for a declaration thatthe proceedings taken by the Collector under Section 14 of the Act wereunauthorized and illegal and conveyed no title to the defendants, and forrecovery of possession of the property,

6. The Subordinate Judge has decreed the plaintiffs claimmainly on two grounds : In the first place he is of opinion that the payment ofthe arrear on the 16th of September was a bar to a proceeding under Section 14under which the Collector purported to convey to the sharers the plaintiffsshare. In the second place, he has held that, as the defendants did not pay inthe amount of arrear within ten days from the date on which the property wasput up to auction, the transfer was illegal and void.

7. The defendants have appealed to this Court, and thelearned pleader who appeared on their behalf took exception to both theconclusions of the Subordinate Judge. He contended that as the Collector didnot accept the payment made by the plaintiffs on the 16th of September, and didnot exempt the property from sale, that payment could not be a bar to thetransfer to the defendants; and, secondly, that the period of ten daysspecified in Section 14 should be taken from service of notice and not from thedate of the auction sale, and consequently the payment made by the defendantswas within time.

8. I will take up the latter question first as it seems tome the decision of the case turns upon it.

9. Now, it is quite clear that the opening of separateaccounts by one or more shareholders does not absolve the joint estate fromliability for arrears of revenue in respect of any portion of the mehal; itonly gives to the shareholders the advantage of throwing the burden primarilyon the share from which the arrear is due. The estate remains liable all thesame. A reference to Section 13 of the Act makes this perfectly clear. Thefirst part of that section runs thus:

Whenever the Collector shall have ordered a separate accountor accounts to be kept for one or more shares, if the estate shall becomeliable to sale for arrears of revenue, the Collector or other officer asaforesaid in the first place shall put up to sale only that share or thoseshares of the estate from which according to the separate accounts an arrear ofrevenue may be due.

10. Then follows the provision relating to the exemption ofthe share or shares from which no arrear is due:

In all such cases notice of the intention of excluding theshare or shares from which no arrear is due shall be given in the advertisementof sale prescribed in Section 6 of this Act.

11. Section 14 shows the position of the other shareholders.It runs thus:

If in any case of a sale held according to the provisions ofthe last preceding section the highest offer for the share exposed to saleshall not equal the amount of arrear due thereupon to the date of sale, theCollector or other officer as aforesaid shall stop the sale and shall declarethat the entire estate will be put up to sale for arrears of revenue at afuture date, unless the other recorded sharer or sharers or one or more of themshall within ten days purchase the share in arrear by paying to Government thewhole arrear due from such share.

12. It is clear from these two sections that so long as thedefaulting share is not sold, the liability of the joint estate for theGovernment revenue continues, only in the first instance the defaulting shareor shares must be put up to sale; if that proves infructuous then the Collector"shall declare that the entire estate will be put to sale, &c."

13. There is no provision in the section about any notice tothe other recorded sharer or sharers. The Collector is required simply todeclare at the time he stops the sale that the entire estate will be put up tosale, in other words that the existing liability would be enforced against theentire estate unless the other sharers or one or more of them should within tendays purchase the share in arrear by paying to Government the whole amount due.The reason for not requiring any notice of such declaration is obvious fromwhat I have already stated. The entire estate is liable for the revenue, onlythe particular share is to be put up to sale first; the advertisement of saleprescribed in Section 6 is duly published at the Collectors office, and thoughin that document the intention of excluding the share or shares from which noarrear was due is notified, owners of the latter know from the notificationthat the entire estate is in jeopardy, and that the exemption of their sharesis only conditional, and that in case the highest bid does not cover the arreardue to Government, the entire estate will be sold unless the other shares payin the amount within a limited time and take over the property. Therefore, sofar as the liability to sale of the entire estate is concerned, each sharer hasthe knowledge when the advertisement or notification is issued. It is for themto see whether the defaulting share covers the arrear or not. The law assumesthat the other sharers are present and know whether the highest bid reachesthat point; and for this reason makes no provision for a notice of theCollectors declaration, which, must be made simultaneously with the stoppageof the infructuous sale.

14. It has been contended that the Board of Revenue hasframed a rule providing for the issue of a notice. It is a commendahle rule, ifI may say so, showing that the Government is not disposed to apply the salelaw, which is drastic enough, more harshly than it can help, and thereforeprovides for the issue of a notice to the other sharers. But the Board cannot,by any rule, supplement the law which is complete in itself. Nor can a remedialexecutive rule designed for one purpose, that is, for protecting from sale theshares of others than the defaulting sharer without some notice, be construedas enlarging the time fixed for payment by the sharers, and thus depriving aman of his property without the sanction of the law.

15. If the entire estate is sold without the notice requiredby the Boards rule, or within ten days from service of such notice, thesharers not in default may, on that ground, obtain a reversal of the sale, butthat rule, to my mind, will not warrant the Collector handing over one mansproperty to another without strict compliance with the law under which alonethat power can be exercised. As I understand Section 14 of Act XI of 1859 itgives to the other sharers a statutory right of pre-emption so to speak inrespect of the defaulting share. The right is of an exceptional character; itentitles them to obtain the property which may be of considerable value for themerest trifle without any competition. In order to claim such a right and toenable the Collector to give effect to such a claim they must show a strictcompliance with the provisions of the law.

16. It is to be observed that the section speaks of the"highest offer," not equalling the amount of arrear due. To my mindthese words show that the law contemplates the exercise of the exceptionalpower given to the Collector under Section 14 in a case where the property iseither so valueless or so peculiarly situated that at a competitive sale thehighest offer does not, in fact, reach the amount due; in other words, after ithas been tested in open market by actual bidding that the property could notfetch the amount in question. It does not in my opinion contemplate a casewhere from some accidental reasons there have been no bids. It is impossible toconceive that but for some accidental circumstance there would be no offer at alleven to the extent of 18 rupees for the property in suit, which the Judge findsto be of considerable value.

17. I am, therefore, of opinion that the Subordinate Judgeis right in holding that the defendants, not having made the payment within tendays from the 18th of September 1890, acquired no right whatsoever to theproperty which was purported to be conveyed to them by the Collector, and thathis proceeding is illegal and void and without jurisdiction.

18. If the intendment of the law be that the declaration ofthe Collector should come to the knowledge of the sharers, there is nothing toshow that it must be by a formal written notice. I take it that if thedefendants had notice or information of the declaration made by the Collectoron the 18th, the absence of a written notice would not absolve the estate fromits liability to sale.

19. There is absolutely nothing on the record to show thatthe defendants had no knowledge of the Collectors declaration on the 18th, orin fact when they first became aware of it.

20. Assuming, however, as it is contended on behalf of theappellants, that a formal written notice was necessary, I find that it bearsdate the 18th of September, the date on which the defaulting share was put upto sale. There is not an iota of evidence as to when the notices were receivedby the defendants. The endorsements on the notices in my opinion are noevidence of the facts they purport to mention; it is perfectly possible thatthey may be post-dated, which is by no means uncommon. The peon who served thenotice has not been examined, nor have the defendants given their evidence toshow when they received the notices. Nor is there the smallest explanation whythe notices dated as they are the 18th of September, were not issued until the2nd of October. If the defendants want to avail themselves of the strict letterof the law, they roust satisfy by strict proof that they came within itsprovisions. Courts of Justice are often compelled to enforce the law in all itsstringency regardless of all considerations of individual hardship or injury toprivate rights, but they are not constrained to make every assumption in favourof the co-sharer claiming an exceptional right.

21. But it is objected on behalf of the defendants thatinasmuch as this ground was not "declared and specified" in theappeal before the Commissioner the plaintiffs are precluded under theprovisions of Section 33 from raising it in the Civil Court; and in support oftheir contention they rely on the case of Gobind Lal Roy v. Ramjanam MisserI.L.R Cal. 70. This brings me to the consideration of the question whether thetransfer by the Collector of the defaulting share to the co-sharers is a"sale" coming within the purview of Section 33. That section so faras is material for the purposes of the present discussion runs as follows:"No sale for arrears of revenue or other demands, realizable in the samemanner as arrears of revenue are realizable made after the passing of this Act,shall be annulled by a Court of Justice, except upon the ground of its havingbeen made contrary to the provisions of this Act, and then only on proof thatthe plaintiff has sustained substantial injury by reason of the irregularitycomplained of, and no such sale shall be annulled upon such ground unless suchground shall have been declared and specified in an appeal made to theCommissioner under Section 25 of this Act." Their Lordships of the PrivyCouncil in the case upon which the defendants rely express themselves thus:"Giving, however, full weight to these considerations their Lordships,having regard to the scheme of the Act and the express direction contained inSection 33, are of opinion that in every case where a sale for arrears ofrevenue is impeached as being contrary to the provisions of Act XI of 1859,no grounds of objection are open to the plaintiff which have not been declaredand specified in an appeal to the Commissioner." And then follow thesignificant words: "In the opinion of their Lordships a sale is a salemade under Act XI of 1859 within the meaning of that Act, when it is a sale forarrears of Government revenue held by the Collector or other officer authorizedto hold sales under the Act, although it may be contrary to the provisions ofthe Act either by reason of some irregularity in publishing or conducting thesale, or in consequence of some express provision for exemption having beendirectly contravened."

22. The question then is-Is a purchase under Section 14"a sale held by the Collector under the Act" Section 19 tells us howsales are to be made or held. "Sales shall ordinarily be made by theCollector or other officer as aforesaid in the Land Revenue office at thesudder station of the district; provided however that it shall be competent tothe Board of Revenue to prescribe a place for holding sales other than suchoffice whenever they shall consider it beneficial to the partiesconcerned." Sections 20 and 21 relate to the procedure to be observed atthe time of making "the sale." Section 22 says: "The party whoshall be declared the purchaser of an estate or share of an estate at any suchpublic sale as aforesaid shall be required to deposit immediately, or as soonafter the conclusion of the sale of the estate or share as the Collector orother officer aforesaid, etc." Compare also the phraseology of Section 14"if such purchase be completed" with that of Section 28"immediately upon a sale becoming final." These and the succeedingsections show clearly that the sale contemplated in Section 33 and referred toby their Lordships is a public sale held either in the Land Revenue office atthe sudder station of the district or any other place, which the Board mayprescribe whenever they consider it beneficial to the parties concerned -a saleat which bidders are or can be present, and in which there is a possibility ofcompetition; otherwise the provisions of Section 19 become meaningless, and thereference to what is beneficial to the parties concerned" superfluous. Itcould never have been the intention of the Legislature to designate the dealingunder Section 14 as a "sale" under the Act. Section 14 itself showsclearly to my mind the distinction between a "sale" under the Act andthe proceeding by which the Collector conveys the defaulting share to thesharers. The latter clause of the section runs thus: "If such purchase becompleted, the Collector, or other officer as aforesaid, shall give suchcertificate and delivery of possession as are provided for in Sections 18 and19 of this Act to the purchaser or purchasers, who shall have the same rightsas if the share had been purchased by him or them at the sale. If no suchpurchase be made within ten days as aforesaid the entire estate shall be soldafter notification for such period and publication in such manner as isprescribed in Section 6 of this Act." It gives on the completion of the"purchase" and the delivery of the certificate to the purchaser orpurchasers the same rights as if the share had been purchased by him or them atthe sale "-the sale which was to he held under Section 13 in accordancewith the provisions of Section 6. If the purchase under Section 14 was a"sale" it would not only be unnecessary but absurd to say that thepurchasers would have the same rights as if they had purchased at "the sale"which was advertised in accordance with the provisions of Section 6, and whichcould only be held under the guarantees of Section 19.

23. As I mentioned before, to my mind Section 14 gives tothe sharers a statutory right of pre-emption, so to speak, subject to astatutory obligation. It gives to the Collector, subject to the sameconditions, the power of handing over the property of one who was primarilyliable for the arrears which had fallen due in respect of the estate to othersequally liable, though their liability can be enforced only at a later stage.All the elements which constitute a "sale" are wanting here; there isno competition, there are no bidders, no advertisements and no publicity, andthe price is the arrear due which may be a mere trifle compared to the value ofthe property. What their Lordships in the Privy Council had in view was, as itseems to me, the case of a person buying in open market at a "publicsale" in competition with others. I think therefore the objection of thedefendants founded on Section 33 is untenable.

24. In the view I take of the case it is unnecessary toconsider whether the payment made by the plaintiffs on the 16th of Septemberwas or was not a bar to the transfer by the Collector. But as the question hasbeen raised and discussed I think it better to express my opinion on the point.

25. As I have already mentioned, in my opinion the transferunder Section 14 is not a sale under the Act. Section 6 lays down the procedurefor issuing notifications, etc., and provides that: "Except as hereinafterprovided all estates or shares of estates so specified shall, on the daynotified for sale, or on the day or days following, be put up to public auctionby, and in the presence of, the Collector or other officer as aforesaid, andshall be sold to the highest bidder, and no payment, or tender of payment, madeafter sunset of the said latest day of payment shall bar or interfere with thesale either at the time of sale or after its conclusion." The salereferred to at the end of the section is the public sale by auction, theprocedure of which is laid down in Sections 19 20 and 21. Section 8 declares asfollows:

No claim to abatement or remission of revenue, unless thesame shall have been allowed by the authority of Government, and no privatedemand or cause of action whatever held or supposed to be held by any defaulteragainst Government, shall bar or render void or voidable a sale under this Act;nor shall the plea that money belonging to the defaulter and sufficient to paythe arrear of revenue due was in the Collectors hands bar or render void orvoidable a sale under this Act, unless such money stand in the defaulters namealone and without dispute, and unless, after application in due time made bythe defaulter or after the written agreement provided for in Section 15 of thisAct, the Collector shall have neglected or refused on insufficient grounds totransfer it in payment of the arrear of revenue due," and Section 18, sofar as is material, runs thus: "It shall be competent to the Collector orother officer as aforesaid at any time before the sale of an estate or share ofan estate shall have commenced, to exempt such estate or share from sale, andin like manner it shall be competent to the Commissioner of Revenue, at anytime before the sale of an estate or share of an estate shall have commenced,to exempt such estate or share from sale, by a special order to the Collectoror other officer as aforesaid to that effect in each case, and no such saleshall be legal if held after the receipt of such order of exemption, provided,however, and it is hereby enacted that the Collector or other officer asaforesaid, or the Commissioner, shall duly record, in a proceeding the reasonfor granting such exemption, and provided also that an order for exemption soissued by the Commissioner shall not affect the legality of a sale which mayhave taken place before the receipt by the Collector or other officer asaforesaid of the order of exemption.

26. Throughout these sections the sale referred to is thepublic sale by auction. The payment on the 16th, in the absence of an order ofexemption under Section 18, would have been clearly no bar to a sale on the18th as advertised; but there is not a word anywhere throughout the Act that anactual payment of the arrear, though after due date, should not he a bar to theCollector proceeding under Section 14 to hand over the property without anyformality or guarantees that surround a public sale to the other sharers. Inthe absence of any provision to that effect or any authority I do not feelinclined to stretch the law beyond its legitimate extent. On the whole,therefore, I agree with the lower Court on both the points, and wouldaccordingly dismiss this appeal with costs.

Beverley, J.

27. The plaintiffs in this suit were the owners of a shareknown as the ijmali or joint share in a certain estate. The defendants are theowners of three other shares in the same estate, in respect of which separateaccounts have been opened. In 1890 the plaintiffs defaulted in payment of theGovernment revenue due upon their share, and their share was accordinglyadvertised to be sold on the 18th September under Sections 6 and 13 of Act XIof 1859. On the 16th September the plaintiffs tendered the amount in arrear andactually paid it into the Treasury; but the Collector refused to exempt theshare from sale, and in fact proceeded to put it up to sale on the 18th. Therebeing no bid, however, the sale was stopped, and the Collector made an order underSection 14 of the Act that unless the arrear was paid in within ten days by theother recorded sharers, the entire estate would be put up to sale. The arrearwas paid in by some of the defendants on the 4th October and by others on the7th October, and accordingly the Collector under Section 14 of the Act granteda certificate of purchase and delivery of possession to the defendant.

28. The plaintiffs thereupon instituted the present suit-(1) for a declaration that the entire proceedings under the Act were illegaland invalid; (2) for recovery of possession of the share; and (3) for mesneprofits.

29. The Lower Court has decreed the plaintiffs suit on twogrounds : In the first place, the Subordinate Judge has held that theplaintiffs having paid up the arrear on the 16th September, there was no arreardue when the Collector purported to proceed under Section 14, and that hisaction was for that reason illegal and invalid. In the second place, he hasheld that as the arrear was not paid in by the defendants within ten days fromSeptember 18th, they acquired no title by their alleged purchase under Section14.

30. From this decision the defendants appeal on the groundthat the Subordinate Judge is wrong in law on both points, and I am of opinionthat the appeal must be allowed.

31. In the first place, I am of opinion that the SubordinateJudge is wrong in assuming that there was no arrear due after the 16thSeptember. The money was no doubt paid into the treasury on that date, and anapplication was made to the Collector to receive the amount on account of thearrear and to exempt the share from sale. But an "arrear of revenue"is defined by Section 2 of the Act, and there is nothing whatever in the Act togive support to the theory that subsequent tender by the defaulter of a sumwhich has once become an arrear has the effect of cancelling that arrear, sothat it no longer exists. It is true that under Section 18 the Collector mayfor good reason exempt an estate or share of an estate from sale, and he wouldprobably refuse to exercise this power, unless the sum in arrear was paid bythe defaulter or by some other person. But in the present case it is clear uponthe evidence that the Collector refused to exempt the share from sale and totreat the arrear as wiped out or cancelled. In their plaint the plaintiffs saythat no order was passed on their application. The same statement was made intheir petition of appeal to the Commissioner of the Division. On the 18thSeptember the Collectors order was: "No bid. Proceedings to be takenunder Section 14." On the 23rd September Mr. Chardon, a zurpeshgidar underone of the plaintiffs, filed an application, asking the Collector to accept thetender or to allow him to pay up the arrear, and in that petition he stated:"Although that arrear with cesses was paid in by chalans by the jointproprietors, and an application was made for exemption from sale, still YourHonour upon returning the application gave the order. "Let the khata andthe ijmali be put together and notice under Section 14 of the sale law be givento the shareholders of the khata, so that they may pay up the arrear and retainthe estate." On 1st October the plaintiff Dharu Lall made anotherapplication to the Collector, in which, after referring to the deposit and theformer application, he stated: "But as the aforesaid share had defaultedseven times within the last three years Your Honour verbally passed the order :There is no need of filing a petition, this share will in any case be sold byauction," and on that application the Collector made the following order:"The share was properly put up for sale, as it defaulted seven times intwelve kists. It is beside the point that the petitioner or any one else haspaid in the arrears after the estate has defaulted. When the ijmali share wasput up for sale, no one bid, and accordingly I had no alternative but to buy itin for Government (which I did not think advisable) or to postpone the sale andtake action under Section 14 of the Sale Act. This I did, and having done so,the law must take its course. I have no power to cancel my order. Applicationrejected."

32. From all this it is quite clear that the Collectorrefused to exempt the share from sale; the share was in arrear, and the arrearmust be held to have been still due when the Collector proceeded in accordancewith the provisions of Section 14 of the Act.

33. It is admitted both by the Subordinate Judge and at thebar here that under Section 6 of the Act no payment, or tender of payment, madeon September 16th could bar or interfere with the sale unless there had been aspecific order of exemption from sale under Section 18-Gobind ChandraGangapadhya v. Sheraju-nessa Bibi 13 C.L.R. 1, and Lala Gauri Shankar Lal v.Janki Pershad I.L.R. Cal. 809 but it is contended that in this case there wasno such sale as is contemplated by Section 6 of the Act, and that the lastclause of that section will not apply to a purchase by the other recordedsharers under Section 14; that no order of exemption in that case wasnecessary; and that there being at that time no arrear due, the purchase by theother sharers was illegal and invalid.

34. I have already given my reasons for holding that thearrear was still due at the time of the purchase by the defendants, and I am ofopinion that the tender and deposit of the arrear on September 16th did notinvalidate the purchase by the defendants under Section 14. The proceedingsunder Section 14 were only taken because there was no bid for the share at thesale of September 18th. Had the share been sold then, it would have beenadmittedly a good sale, and Section 14 distinctly says that a sharer purchasingunder that section "shall have the same rights as if the share had beenpurchased by him at the sale." The defendants therefore, by exercising theprivilege allowed them by Section 14, were put in the same position as if theyhad purchased the share at the sale of September 18th, and, as that sale wouldadmittedly have been a good sale in the absence of any order of exemption, thedefendants must have acquired a good title by their purchase.

35. I must confess that I find myself unable to follow thereasoning of the Subordinate Judge or to understand why an arrear, which wouldhave justified a sale of the share on the 18th September, and which presumedlywould have justified a sale of the whole estate had the arrear not been paid bythe other sharers under Section 14, is nevertheless not such an arrear as wouldmake the purchase by the sharers under that section a valid transaction. Thatpurchase must be regarded as a part of the sale proceedings. There had been nobid for the share, and under the law the entire estate was liable to be sold,but as the other sharers were not to blame for the default, the law mercifullyallows them to save their property from the hammer by paying up the arrear duefrom the share in arrear, and the legal effect of such payment is the transferof the share in arrear to the other sharers in the same way as if the share hadbeen purchased by them at the sale.

36. On the second point, I am also of opinion that the LowerCourt is wrong in holding that the defendants purchase is invalid, becausethey did not pay the arrear within ten days from the date of sale, that is tosay, September 18th. What Section 14 says is that if at the sale the highestoffer for the share shall not equal the amount of arrear due there upon to thedate of sale, the Collector shall stop the sale and shall declare that theentire estate will be put up to sale for arrears of revenue at a future date,unless the other recorded sharer or sharers, or one or more of them, shallwithin ten days purchase the share in arrear by paying to Government the wholearrear due from such share." Now, in the absence of any specific words to thecontrary, the reasonable construction of this provision of the law is that theother sharers shall be allowed ten days time within which to pay the amount ofarrear and save their property from sale, and that the ten days shall countfrom the date on which notice of the Collectors order or declaration shallhave been communicated to them. This reasonable construction of the law isincorporated in a circular order of the Board of Revenue which runs as follows:"When an entire estate, of which separate accounts have been opened,becomes liable to sale for arrears of revenue under this section, inconsequence of the highest offer for the share exposed for sale being not equalto the amount of arrears due thereupon up to the data of sale, it shall be theduty of the Collector to publish in open Court a declaration that the entireestate will be put up for sale on a future date, unless the other recordedshare holders, or one or more of them, shall, within ten days from the date ofthe service of a notice on them, purchase the share in arrear by paying toGovernment the whole arrear due from such share, and the Collector shall alsoserve a notice to this effect on each of the other recorded shareholders of theestate." Boards Circular Order, dated 5th October 1884; see GrimleysRevenue Sale Manual, p. 44. It may therefore be presumed that this is therecognised usage in all Collectors offices, and I think we may and ought tolook at this usage as supplementing the law on this point. There is nothing inthe law requiring the other sharers to be present at the sale of a share, andit would be altogether unreasonable that an order should be made for the saleof the entire estate without notice to them. It is admitted that notice wasissued to the defendants in the present case, and it is not alleged that thearrear was not paid within ten days from the date of service of such notice.That being so, I think there is ample evidence on the record to show that theamount was so paid, and I am of opinion that that payment sufficiently compliedwith the requirements of the law.

37. It has further been contended for the appellants thatunder Section 33 of the Act this point cannot be raised in the present suitinasmuch as it was not taken in the petition of appeal to the Commissioner.Having carefully considered that petition and the order of the Commissioner, Iam satisfied that this ground was not "declared and specified" beforehim, and therefore on the authority of the Judicial Committee of the Privy Councilin Gobind Lall Boy v. Ramjanam Misser I.L.R. Cal. 70 it is not open to theplaintiffs to raise the point in the present suit. It may be that the case is ahard one and that the plaintiffs have suffered great loss in consequence oftheir default in paying the Government revenue. But that is not a considerationthat ought to influence the Civil Courts in the administration of the law. Allthat the Court has to consider is whether the plaintiffs have succeeded inproving such legal defects in the defendants title that their purchase oughtto be set aside. The law itself in Sections 18 and 26 provides for relief incases of hardship, but that is not a matter in which the Civil Courts areauthorized to interfere.

38. I am of opinion that the appeal should be allowed, andthat the plaintiffs suit should be dismissed with costs in both Courts.

39. As however my learned colleague dissents from the viewof the law taken by me, the papers must be laid before the Chief Justice inorder that the case may be referred to a third Judge.

William Comer Petheram, C.J.

40. The facts of this case are so fully set out by thelearned Judges who have differed that it is not necessary for me to state themagain.

41. Section 3 of the Act provides that, if all arrears ofrevenue, etc., are not paid up to the date at which they are declared to bedue, the estate in arrear shall be sold by auction to the highest bidder.Section 6 provides that "no payment, or tender of payment, made aftersunset of the latest day for payment, shall bar or interfere with the sale,either at the time of sale or after its conclusion." Section 10 provides amachinery by which a share of an estate may, for certain purposes, be treatedas a separate estate, and Section 13 provides that, when this has been done, suchshare shall be first offered for sale for its own arrears, and that the entireestate shall not be sold for the arrears of shares, unless at [8 the sale asufficient amount to satisfy the arrears has not been obtained for the share.Section 14 provides for what is to be done with reference to the sale of theentire estate when the share has not been sold because a sufficient amountcould not be obtained for it to satisfy its arrears. In that case the Collectormust stop the sale, and declare that the entire estate will be put up for saleat a future date, unless the other recorded sharer or sharers, or one or moreof them, shall within ten days purchase the share in arrear by paying to theGovernment the whole arrear due from it.

42. There can be no doubt that whether the sale is a sale ofthe share only under Section 13 or is a sale of the entire estate at a"future time," such as is contemplated by Section 14, it must alwaysbe a sale for default of payment of revenue under Section 3 and be subject tothe provision of Section 6, and, consequently, no payment or tender can preventa sale either of the share or of the entire estate unless made in time, orunless the Collector decides to exempt the estate or share from sale under thepower given him in Section 18, and it is I think impossible to hold that theestate or share is in arrear for the purpose of bringing it to sale and is notin arrear for the purpose of enabling the Collector to act under the otherprovisions of Section 14, which are in fact regulations under which the powerto sell the entire estate for the arrears of the share are to be exercised.This disposes of the first ground on which the suit has been decreed, and onthat ground I think the appellant is entitled to succeed.

43. The next ground on which it is contended that the salecannot be effective to pass the share to other sharers is that the arrear wasnot paid to the Government by them, until after the period of ten days from theday when the sale of the share was stopped by the Collector. Mr. Justice AmeerAm thinks that, when that period had expired, all the rights of the othersharers in the entire estate to stop the sale of their own property were at anend, as they are in conflict with those of the defaulting sharer, and he thinksthe right of the defaulter must prevail over those of the sharers who are notin default at all. To test the soundness of this view I will try to considerthe question from their point of view, and for this purpose will assume thatthe action is one which is brought by the owners of the shares, not in default,to set aside the sale of the entire estate for an inadequate price at a sale,held after they had deposited the whole of the arrears, but at a time which wasafter the period of ten days had expired, but within ten days of the time whenthey had notice of what had taken place, and that they never in fact had anynotice at all of the sale of their own property. If Mr. Justice Ameer AliSview of the law is correct, their suit must fail, and they must lose theirestate, however valuable it may be, for the inadequate price for which it wassold at a sale, of which they never heard, and they must do so because theirrights are in conflict with those of their defaulting co-sharer whose right inthis view of the law was, at the expiration of an arbitrary period of ten days,to have the whole estate sold in order that he might get the best price for hisshare. The defaulter might have protected his share by payment at any timebefore sale of the revenue in arrear, but in addition to this he might haveprotected it on the very day of sale by himself purchasing it for the amount ofthe arrears; he must of necessity have known that his share would be offeredfor sale, because he must have known that he had not paid the revenue in time,and that the Collector had refused to exempt it from sale, and he would knowthat if a sum equal to the arrears were not offered, the sale would proceed.

44. I have myself examined the Act and have asked mycolleagues and the gentlemen who have appeared in the case whether there is anyprovision in the Act which prevents the owner of a defaulting estate or sharefrom himself bidding at the sale, and no such provision can be found, and itmust follow that if he had been pleased to do so the defaulter might haveattended the sale, and himself, as there were no bidders at all, have purchasedthe share for the amount of the arrears, which amount was already standing tohis credit in the Collectorate, and so his estate would have been saved. Icannot think that the Legislature ever intended that the estate not in defaultshould be sacrificed in the interest of a defaulter having such opportunities,and not caring to take advantage of them, without giving its owner some reasonablemeans of protecting himself, and that I think can only be done under thissection, and this is the only section which gives him any protection at all, byreading it as Mr. Justice BEVERLEY has done, or by limiting the operation of somuch of the section as prescribes a period of ten days to the power of theCollector to notify the entire estate for sale, but leaving him at liberty tosell it in the other way prescribed by the section at any time before the saleby public auction takes place, and this is the view which I am disposed totake.

45. But however that may be, I am of opinion that the groundcannot be relied on by the plaintiff in this action, as it was not declared andspecified in his appeal to the Commissioner. Section 33 of the Act providesthat "no sale for revenue or other demands, realizable in the same manneras arrears of revenue are realizable, shall be annulled by a Court of Justice,except on the ground of its having been made contrary to the provisions of theAct, and then only on proof that the plaintiff has sustained substantial injuryby reason of the irregularity complained of," and that "no such saleshall be annulled upon such ground unless the ground shall have been declaredand specified in an appeal made to the Commissioner." In this case anappeal was made to the Commissioner, and the grounds of that appeal are uponthis record; one of them states that the sale ought to be set aside, becausethe whole of the arrears had been deposited in the Collectorate on the 16th,but neither of them contains any reference to the period of ten days mentionedin Section 14, nor in any way complains that the sale to the defendants wasmade after that period had expired. There can be no doubt that the object ofthe suit is to annul the defendants purchase from the Collector, and if thatpurchase was made in a sale for arrears of revenue, I think that the CivilCourts cannot annul it on this ground, as it certainly was not declared andspecified in the appeal to the Commissioner. It is said that this section onlyapplies to sales by public auction, and that the whole Act shows that this is(he case, but I cannot agree in that view of the meaning of the section. TheAct provides two modes in which a share of an estate may be sold for an arrearof revenue, one by public auction in the same way as that in which entireestates are sold, the other by private sale to the other sharers in the entireestate, after the share has been offered for sale by public auction, and at ahigher price than the highest bid obtained for it. It is quite true that mostof the references to sales in the Act appear to be to sales by public auction,and the remarks of the Judicial Committee in the case which has been citedbefore us have the same tendency, but I am quite unable to understand how itcan be possible for us to refuse to give effect to such plain words as thoseused here for such a reason. The words used are "no sale, etc., shall beannulled, etc.," and they are as general as it was possible for theLegislature to make them, and I do not think we should be justified inrestraining their operation to sales conducted in one way only, when in theirordinary meaning they include all sales made for this purpose, in any wayContemplated by law.

46. This disposes of the second ground on which the suit hasbeen decreed and on that ground too I think the appellants are entitled tosucceed. I agree with Mr. Justice Beverley that the appeal must be allowed, andthe suit dismissed with costs in both Courts.

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Ishri Mul and Ors.vs. Goasain Chutturbhooj Dut and Ors.(28.05.1894 - CALHC)