Patna High Court
Mahant Krishna Dayal Gir vs Syed Abdul Gaffur And Anr. on 27 March, 1917
Equivalent citations: 40IND. CAS.13, AIR 1917 PATNA 555(2)
JUDGMENT Chapman, J.
1. A revenue paying estate, bearing Tauzi No. 4601, was held by co-sharers. Some had opened seprate accounts under the Revenue Sales Act entitling them to pay their shares of the Government revenue separately. The residuary share which remained after the opening of these separate accounts was put up for sale on account of arrears. The highest offer made at the auction did not equal the amount of. the arrear due. Thereupon, the Collector stopped the sale and declared that the entire estate would be put up for sale unless the several recorded sharers or one or more of them were willing to purchase the share in arrear by paying to Government the whole arrear due. On the 15th June 1911, Nathnni Narayan Singh, one of the co-sharers, purchased the residuary share by paying the amount of revenue in arrear. Mahanth Krishna Dayal Gir, claiming to bold eight-annas shares in two villages included in the residuary share, appealed to the Commissioner against the sale. His appeal was rejected on the ground of limitation. On the 23rd of May 1912 Mahanth Krishna Dayal Gir filed the suit out of which the present appeal arises. He prayed that the sale should be set aside upon the ground that no notice under sections 6 and 7 of the Revenue Sales Act and no writ of delivery of possession were duly and legally served; and that there was no arrear of revenue due from him. He further asked the Court to hold that the sale to Nathuni Narayan and the sale-deed under which one Syed Abdul Gaffnr had purchased the share from Nathuni Narayan had not conveyed the eight-annas share held by the Mabanth in the two villages above referred to. The plaintiff Mahanth's case, so far as the latter portion of his prayer is concerned, is based upon the ground that his shares in these two villages, Khair a Khurd and Sao Khurd, were omitted from the list of mouzas mentioned in the sale-certificate.
2. The Subordinate Judge held that the plaintiff had failed to prove that there were no arrears of revenue due; and had also failed to prove that the requisite notices had not been served. He, therefore, held that upon the case made in the plaint the sale could not be set aside.
3. Upon the question as to what passed by the sale, raised in the second portion of the plaintiff's case above referred to. he held that the entire residuary share passed, although the list of shares of mauzas comprised in the share was not complete. He also held that as there had been no appeal to the Commissioner within sixty days of the sale, the suit was barred under Section 33 of the Revenue Sales Act.
4. The District Judge dismissed the appeal to him, upon the sole ground that the suit was barred by Section 33 of the Revenue Sales Act above referred to.
5. The plaintiff has row appealed to this Court. He does not contend before us that he can succeed upon the ground either that no arrear of revenue was due or that the requisite notices were not served. We are therefore, no longer concerned with either of these two points.
6. The first contention in appeal is that the sale should have been set aside upon the ground that the description of the property in the notification under Section 6 was either insufficient or incorrect. This was not the case in the plaint but apart from that, 1 am of opinion that the contention must fail. Section 33 of the Act says that no sale shall be annulled by the Court except upon the ground of its having been made contrary to the provisions of this Act; and that no sale shall be annulled upon such a ground unless the ground relied upon shall have been declared and specified in an appeal made to the Commissioner under Section 25 of the Act. Section 25 of the Act has now been replaced by Section 2 of Act VII of 1868; that section requires that the appeal to the Commissioner shall be presented within sixty days of the sale. It is admitted in the present case that the appeal to the Commissioner was presented long after the sixty days had expired. It is clear, therefore, that there has been no appeal to the Commissioner under the section and that, therefore, a suit to set aside the sale on the ground of misdescription would be barred.
7. We have been asked to call in the aid of Section 5 of the Indian Limitation Act, which permits a Court to entertain an appeal after time for sufficient cause. If in the present instance the Commissioner had applied Section 5 and had entertained the appeal upon the statement of the appellant that he came to know of the sale for the first time within sixty days of his appeal, then possibly it might have been open to us to say that the appeal was an appeal under Section 2 of Act VII of 1868. In the absence of any order by the Commissioner to that effect, 1 am unable to say that the appeal made to the Commissioner was an appeal under Section 2 of Act VII of 1868. I am, therefore, clearly of opinion that we cannot in this case go into the question whether the sale should be set aside upon the ground of any irregularity in the notifications or in the description of the property which was put up for sale.
8. It is significant to note that the plaint makes no mention of any defect in the notification under Section 6. Nor is it alleged that the failure of the bidding resulted from any imperfection in the description of the property in the sale notification. It was necessary for the plaintiff, if he wished to succeed on this ground, to specifically state the case, first, in his appeal to the Commissioner and, secondly, in his plaint in this suit. But he did neither.
9. So far as the failure of the bidding is concerned, the allegation in the written statement to the effect that there was a mortgage decree due to the plaintiff himself for more than one and a half lakh of rupees against this residuary share is significant. It suggests that it was impossible for the plaintiff to say that the failure of the bidding was the result of misdescription, for the failure would be attributable to the existence of this mortgage decree. The suggestion is that the omission to make the case of inadequate bidding in the plaint was intentional.
10. I am clearly of opinion that both having regard to the provisions of Section 33 and having regard to the nature of the case made in the plaint, it is not now open to us to set aside the sale upon the ground of any imperfection in the description of the property given in the sale notification.
11. Nor would it be possible to declare the sale a nullity on the ground of defect in the notification under Section 6. The plaint makes no mention of any defect in the notification, and if it did it would not afford ground for declaring the sale a nullity.
12. The plaintiff can then only succeed upon the second part of his case; namely, upon the ground that his shares in the two villages mentioned in the plaint did not pass at the sale to Nathuni Narayan. To this part of his case Section 33 is clearly not a bar; and the learned District Judge fell into error in summarily dismissing the entire suit. He should have determined the question raised by the plaintiff as to what passed at the sale. All the materials for the decision of this question, however, have been placed before us. The matter has been argued for two days and we propose to determine the question ourselves.
13. Before proceeding to enter into details of the evidence as to what passed at the sale, it is desirable to begin with a short explanation of certain matters involved.
14. The first point is that under the Revenue Sales Act nothing can be sold which is not a revenue paying estate or a share in a revenue paying estate. If there are two descriptions in the sale notification the description which purports to state the share in the revenue paying estate will, therefore, be the dominant description.
15. The second point upon which some explanation is desirable is the use of the word "ijmal" in the papers I shall have to consider. Under Sections 10 and 11 of the Sales Act and Section 70, Land Registration Act, a sharer in a joint estate, who desires to pay his share of the revenue separately, may apply to the Collector specifying the interest held by him in the estate, and the share of the revenue payable on account of it. The Collector then causes to be made a general publication of the fact of this application; and if no objection is made by any other co-sharer, the Collector opens a separate account with the applicant and credits separately to his share all payments made by him. The residuary share of the estate after excluding these separate accounts is called the "ijmal" share. "Ijmal" is the vernacular term which represents the term residuary share. The word has for years been recognised in Bihar. The word is used in that sense in the plaint by the plaintiff himself and the meaning was not questioned before us in argument. In the case reported as Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas. 699 : 42 C. 897 at p. 908 : 2 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 550 : 42 I.A. 79 (P.C.) the Privy Council say "Residue, commonly called the ijmal or joint share." "ijmal" means joint and the word means that portion of the estate, the proprietors of which remain jointly liable for the land revenue after excluding the proprietors who pay separately, "ijmal" is a perfectly definite thing. It is the right of the proprietors who have not separated, stated in the term of a share of the Tauzi number. A purchaser of the ijmali share takes the estate and can oust every interest which is not covered by a separate account and which is not excluded for that reason under Section 13 (2 times) from the sale. It is important to notice two matters in this connection. The first is that Government is interested only in obtaining the revenue and is not responsible for the statements of the applications for separate accounts as to the extent of the interest held by each in the estate; and next that in an estate where several separate accounts have been opened, some in respect of specific portions of the estate under Section 11, Revenue Sales Act, some in respect of shares in specific portions under Section 70, Land Registration Act, 1876, and some in respect of shares in the estate held in joint tenancy, it may be difficult, even if the interests have been accurately stated, to specify in detail what the "ijmal" share consists of. It is, therefore, a very common practice to describe the interests of the proprietors who have remained jointly liable for revenue simply by the word "ijmal" (residuary share) without any specification in detail, it being understood that the proportion which the "ijmal" share bears to the entire estate is sufficiently indicated by stating the proportion of the revenue shown to be payable for the "ijmal" share. This procedure is what was originally contemplated by the Act of 1859. It has been held by the Calcutta High Court to be a sufficient compliance with the law where the separate accounts have all been opened in respect of shares of the estate held in joint tenancy: Ram Narain Roer v. Mahabir Pershad Singh 13 C. 208 : 6 Ind. Dec. (N.S.) 638; Dilchand Mahto v. Baijnath Singh 8 C.W.N. 337; Ismail Khan v. Abdul Aziz Khan 32 C. 509 : 9 C.W.N. 348 : 1 C.L.J. 91.
16. The practice has been said to be materially irregular where the separate accounts have been opened in respect of specific portions of the estate under Section 11 of the Revenue Sales Act or in respect of shares in specific portions under Section 70 of the Land Registration Act: Nibaran Chandra Ghowdhry v. Chiranjib Prasad Bose 32 C. 542 : 9 C.W.N. 487.
17. The third matter upon which some preliminary explanation is desirable relates to the list of villages or shares in villages, which appears in the sale proclamation. The first point to notice is that the Act of 1859 does not require a village list to be given. What the Act of 1859 did require was a notice under Section 13 that the separate accounts would be excluded from the sale. Originally this was done by giving the details of the separate accounts and saying they were excluded. After 1876 when more complete lists of the villages in each tauzi number had been obtained, Section 13 was sometimes complied with by deducting the separate accounts from the estate list and giving a list of villages in the residuary share. The Act of 1859 could not have required village lists, for applicants for separate accounts were not required to base their applications on village lists till Section 69, Act VII of 1876. It is well to remember that the revenue unit in Bengal commonly described by a tauzi number has no direct connection with any village unit. It signifies merely that a separate engagement was made in the 18th century for the payment of the land revenue in respect of the land or lands designated by the tauzi number. The fauzi number may be a piece of land partly in one village and partly in another or it may contain several villages. In 1795 and in 1800 an attempt was made to prepare lists of villages and to show which village or which portion of a village belonged to which tauzi number. This attempt proved abortive and anything like complete lists of villages were not obtained till fifty years later after the revenue survey and it was not till the Act of 1876 that an applicant for a separate account was bound to refer to the entries in the lists of villages.
18. The fourth matter which should be mentioned here is that it is possible for the Government to say what revenue is payable in respect of an "ijmal" share; but it is not possible to say what revenue is payable for an undivided portion of the ijmal share or to say that there were arrears of revenue due from a particular portion of the ijmal share. With these preliminary considerations in mind, I propose to deal with the details of the evidence as to what passed at the sale.
19. The first matter we have to consider is the notification under Sections 6 and 13 of the Act. This purports to be a notification declaring that the share is to be sold. In the headings of this form, the meaning of the word "share," it must be carefully remembered, can only mean a share in the tauzi number. It cannot mean a share in any village or villages in respect of which a complete separate account has not been opened, for such a share cannot be sold under the Act. In columns 7 and 9 of this form the sudder jama of (i.e., revenue payable for) the share, and the arrears due from the share, are to be entered. As I have said, it is not possible to say what the sudder jama of an undivided portion of the ijmal share (such as a village or share of a village) is or that arrears of revenue are due from such an undivided portion. So far as the entries in columns 7 and 9 are concerned, therefore, it is impossible to say that it was intended, or that any body understood, that anything less than the ijmal share was to be put up for sale.
20. Then we have the entry required by Section 13 of the Act to the effect that other shares, except those stated above, will be excluded. This can only mean shares in the tauzi number other than the ijmal share and can have no reference to shares of villages in respect of which complete separate accounts have not been opened.
21. Then we come to column 5, the heading of which is: If only a share is to be sold, specification of such share or shares." Again I say share" can only mean a separate account or a residuary share. Under, this heading occurs the word ijmal" or residuary share. This word, as I have tried to show above, is a description in itself which includes and denotes the entire subject-matter. Then follows a list of some 38 villages with specification of the share in each village. In this long list the name of one of the villages, a share in which is claimed by the plaintiff, and a portion of the share claimed by him in another village are omitted. I have been asked to hold that the dominant description in this notification is this list of shares in the villages and that the word "ijmal" (residuary share) which occurs at the top of the column was not an independent description of the property hut is intended to indicate merely that each of these shares of the villages which stand below is in the ijmul share, I am entirely unable to accept this contention. The contention is inconsistant with the object of the revenue sale notification. It is inconsistent with the entries in columns 7 and 9; it is inconsistent with the only possible meaning which can be attached to the word "share" in the heading of the column 5 under notice; it is inconsistent with the meaning of the word "ijmal;" and it was not the meaning which was attributed to this notification in the second paragraph of the plaint. I am equally unable to accept the other suggestion which was offered; viz , that the omission of these two villages from the long list of villages was intended to restrict the sale to the villages mentioned; and that the intention was to exclude from the sale of the ijmal the sharers in these two villages omitted. In addition to the considerations above set forth the preponderence of probability is all in favour of the omissions being due to mistake and not to intention. For preparing the list of shares in the villages in the ijmal share the Collector's Office has no statement to go upon. The village list for the ijmal share has to be arrived at by numerous deductions from the lists of shares in villages submitted by the holders of the various separate accounts and when the villages number 39 occasional mistakes will occur. It must be carefully borne in mind, moreover, that I am not concerned now with the question whether the notice was sufficiently definite and clear to induce likely bidders to come and bid at the sale. That is an independent question, which, the Privy Council have recently held, depends upon the facts of each case. As I have pointed out earlier in this judgment, I am not concerned in the present case with any imperfection of description, for a suit upon that ground is barred by Section 33. I am concerned only with the question what was in fact described, however imperfectly. I am of opinion that the dominant description was the word ijmal coupled with the proportion of the revenue shown to be payable for the ijmal share. This purports to state the share in the tauzi number and, therefore, must be taken to be the dominant description in perference to a mere list of shares in villages which does not purport to state the share in the tauzi number. If the description was irregular it was nonetheless dominant. The origin of this list of villages is the requirement of Section 13 that notice of the intention to exclude the separate accounts must be given. The accidental omission of two shares in villages does not deter me from holding that the entire ijmal share was notified for sale.
22. The interpretation which I have put upon the notification is confirmed by the next step in these proceedings. The next paper in this case is a declaration by the Collector to the effect that no bid having been made for the share exposed to sale, the share being referred to by the simple word "ijmal" nothing more or less--he (the Collector) would put up for sale the entire estate unless the other co-sharers, or one or more of them, were willing to purchase the share in arrear by paying within 10 days the whole arrear due from such share. As I have pointed out more than once, it is not possible to say that a mere list of shares in villages is a share in arrear. It can only be possible to speak of "a share in arrear" in respect of a share of the entire tauzi number for which a separate account has been opened or which constitutes a residuary share. There can be no doubt, therefore, that this paper confirms the interpretation which I have placed upon the notification under Section 6; and as it is nothing more, nor less, than an offer of the ijmal share, it follows that the entire ijmal share was offered for sale to the co-sharers. Thereafter there was a report by the office to the effect that two of the co-sharers were willing to purchase the ijmal share. Of these two, the office recommended the offer made by Nathuni Narayan and his offer was accepted by a formal order made by the Collector on the 15th of June 1911. It appears to me that what was offered, sold and purchased was the entire ijmal share.
23. Incidentally these papers place beyond doubt the meaning of the word "ijmal" and can certainly be referred to for that purpose.
24. Thereafter, the Collector gave Nathuni Narayan a sale certificate signed by him; and he caused possession to be delivered, and here we come to the first and only difficulty in the case. In the list of villages given in the sale-certificate some 13 shares of villages were omitted. But the sale-certificate is only one of the pieces or bits of evidence from which the Court is to infer what passed at the sale. In the presence of what appears to me to be conclusive evidence as to what passed at the sale, I am not disposed to attach much importance to the sale-certificate. Moreover, we find that possession was actually delivered of the entire ijmal share, and the sale-certificate was amended by the Collector himself so as to include the plaintiff's shares. It is true that the amendment was made after the institution of the present suit, but that does not make any material difference. Some reference has been made to the difference between the amount of the arrears as shown in the sale notification and that shown in the sale certificate. It appears from the office report to the Collector that the amount entered in the sale notification was probably a mistake; or the office report may be a mistake. However that may be, the office reported that at the time of the notification for sale the arrear due was the amount which was paid by the purchaser and which was shown in the sale-certificate. The office report makes it quite clear at any rate that there was no alteration in the amount of the arrear such as to suggest an alteration in the property between the time of the notification for sale and the time when Nathnni Narayan purchased.
25. Upon the point of imperfection it is worthwhile to note that for the purpose of an offer to the co-sharers only, the word "ijmal" was obviously a sufficient description, for ex hypothesi they all knew exactly what the ijmal share was for they or their predecessors had all assented to the separation of the accounts.
26. I may repeat that the ijmal is a perfectly definite thing. It is the rights of the proprietors who have not opened separate accounts stated in the terms of a share in the tauzi number. A purchaser of the ijmal share purchases the right to take possession of the estate and to oust all interests not covered by separate accounts.
27. I have not referred to the cases upon the subject of imperfection of description. These cases all say that in order to set aside the sale it must be proved that the imperfection had an adverse effect on the bidding. The assumption, therefore, in every such case is that the description was in fact sufficient to convey the property and that in the absence of proof that bidding was affected, the sale must stand. The case principally relied upon in this connection is the case of Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas. 699 : 42 C. 897 at p. 908 : 2 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 550 : 42 I.A. 79 (P.C.). In that case the revenue paying estate involved was itself a share, a 15 annas 6-dams share of a mahal named Bisthozari which included as many as 360 villages. The ijmal share in the estate was put up for sale, the specification being described, in the terms of the judgment of the Privy Council, as follows:--"Ijmali share which cannot be specified excluding the separate accounts." The separate accounts numbered as many as 148 and the sale notification stated that "the ijmali share could not be particularised owing to separate accounts having been opened." Their Lordships of the Privy Council decided that the specification was not sufficiently definite and clear to induce likely buyers to come and bid at the sale. They went on to find that in consequence of the irregularity in the sale notification the sale fetched only one third of the value of the property. They accordingly set aside the sale. I would note in respect of this decision, first, that the facts of that case were very peculiar and it was decided on its peculiar facts alone. The second point to notice is that their Lordships expressly refrained from dissenting from any of the rulings which had been cited before them. They say merely that these rulings give no assistance and that each case must depend on its own particular facts. The third point to notice is that although it had been contended on behalf of the appellant that the defects in the notification were such as by themselves to entirely nullify the sale, yet their Lordships say that it is necessary to go into, the further question whether substantial injury had been caused by the defects. They point out expressly that no sale shall be set aside unless the plaintiff proves that he has sustained substantial injury by reason of the defect. It is, therefore, clear that if their Lordships had been unable to hold that inadequacy of price had resulted from the insufficiency of the specification they would have held that the description was enough to convey the ijmal share to the purchaser. In the case before us the defects in the description are of nothing like the same significance. It is a case merely of minor omission due to carelessness. To calculate the details of the ijmal share in the Privy Council case might have involved some 50,000 items of figures.
28. Is it conceivable that if mistakes even to the extent of 4 per cent., as in the present case, had been made, their Lordships would have held that the question what passsed at the sale would have been affected? I am of opinion that the case referred to affords no authority for holding that in the present instance the description was not such as to have conveyed the entire ijmal share to the purchasers if the notification under Section 6 had resulted in a sale. Their Lordships had to do with the question whether the property had been sufficiently notified. What I have to determine is whether it was notified at all, a very different matter.
29. Bearing in mind that when the Act of 1859 was passed there were no complete lists of the villages in each tauzi number, the Act itself seems to have contemplated that a residuary share should be notified for sale under Section 6 in the following manner:
30. Firstly by stating simply: "Residuary share" (ijmal) and then by setting out under Section 13 in detail every share, whether consisting of an undivided share or of a specific portion of the estate in respect of which a separate account had been issued, and stating that these were excluded from the sale. Supposing that in giving the list of excluded separate accounts under Section 13 a mistake of detail was made, would that entirely vitiate the sale? I am of opinion that it would not and that it would merely be an irregularity for which a sale could be set aside by a suit brought within the limitations of Section 33. As a result of the Land Registration Act, 1876, and of the recent rulings since 1905, the Collector when putting up an ijmali share to sale ought now to set out all the details of the interest of which the share consists. Can I say that the result of this is that if mistakes are made of detail, a notification under Section 6 would be bad and the sale would be vitiated. I am of opinion that this cannot and ought not to be held. Where a bona fide attempt has been made to describe the ijmali share for sale for the purposes of the notification under Section 6, I am of opinion that the sale should not be held to be void and that the mistakes should be treated as irregularities which may form the basis of a suit within the limitations of Section 33 of the Act. The question of nullity or no nullity should, in my opinion, be determined by reference only to the meaning of sections 6 and 13 of the Act of 1859 in the years in which the Act were passed and not to the rulings under Section 33, which did not arrive at their present stage till fifty years later.
31. The result is that I hold that the plaintiff's shares in these two villages, which admittedly formed part of the ijmal share, were conveyed at the sale which affected the entire ijmal share; and, therefore, the plaintiff has no title. I would accordingly dismiss this suit with costs in all Courts.
32. I understand that my learned colleagues will deliver judgments to the contrary effect.
33. The divergence of opinion can be stated in a few words:
(a) In my view a sale cannot be held to be void merely on the ground that the notification under Section 6 was not prepared in strict accordance with the rulings. If a sale could be held to be void on that ground Section 33 of the Act would be rendered of no effect.
(b) The word ''ijmal" has for many years been accepted in Bihar as the vernacular equivalent of the residuary share contemplated by the Revenue Sales Act. This use of the word was recognized by the Privy Council in the judgment I have cited. The plaintiff himself uses the word in that sense in the plaint and the meaning was not questioned in argument before us and has never been doubted. The word is never used for the residue of a separate account.
(c) Cases on Wills or private Conveyances are unsafe guides to the interpretation of an offer to sell under stautory powers. In the interpretation of a Civil Court sale the dominant consideration is the nature of the suit. In interpreting a statutory sale the dominant consideration will be the nature of the statutory proceedings. The policy of the law does not require the Courts to scrutinize the proceedings of a statutory sale with a view to defeat them. On the contrary every reasonable intendment will be made in their favour so as to secure, if possible, the object they were intended to accomplish. The notification should be construed as applying to the property which should have been notified unless to so construe the notification is to do violence to its terms.
34. The appeal will be determined in accordance with the opinion of my colleagues.
Mollick, J.
35. The plaintiff alleges that he was proprietor of an eight-anna share in Mauzah Khaira Khurd and of an eight-anna share in Mauzah Sao Khurd, situated within Mahal Khaira bearing Touzi No. 4601, the sadr jama of the entire mahal being Rs. 5,281-12 0; that after the opening of several separate accounts in the said mahal, an ijmal share was formed comprising many mauzahs, in which were included the above two mauzahs belonging to the plaintiff; that the said ijmal share was advertised for sale for arrears of Government Revenue due up to the March kist of 1911, and that as a sufficient bid was not offered proceedings under section. 14 of Act XI of 1859 were taken with the result that defendant No. 2, one of the recorded proprietors of the estate, purchased on the 15th of June 1911 for a consideration of Rs. 226-3-9 the shares of all the proprietors of the ijmal mahal save and except that of the plaintiff.
36. I have used the words 'ijmal', 'ijmal share' and ijmal mahal,' because they have been so used by the plaintiff in his plaint, but in my view the use of these expressions does not imply an admission that the residuary share in the estate was in fact sold. :
37. The plaintiff accordingly sues for a declaration that the sale was illegal and contrary to law and that the auctions purchaser and his assignee No. 1 acquired no title to the eight-anna share of Mavzah Khaira Khurd and eight-anna share of Mauzah Sao Khurd and the plaintiff prays for recovery of possession and mesne profits.
38. The Subordinate Judge framed the following issues:
(1) Is the suit maintainable in its present; form?
(2) Is the suit barred under Section 33 of the Revenue Sale Law, plaintiff not having appealed within the 60 days of the sale to the Commissioner?
(3) Had the plaintiff any right, title or interest in the disputed property at the time of the revenue sale?
(4) Is the plaintiff entitled to maintain the suit?
(5) Was the revenue sale brought about by the fraud of defendant No. 2?
(6) Is the revenue sale fit to be set aside?
(7) Is the suit bad for defect of parties? (8) Can the sale in question and the kobala, dated 9th July 1911, executed by defendant No. 2 in favour of defendant No. 1 affect the plaintiff's share in the property in suit? What passed by the sale?
(9) Is the plaintiff entitled to recover possession of the properties in suit?
(10) Whether the plaintiff is entitled to mesne profits? If so, how milch?
39. The Subordinate Judge found that the suit was barred by limitation and, therefore, liable to dismissal. He also found that the sale notification published under Section 6, Act XI of 1859, which enumerates 38 mouzahs or shares of mouzahs was defective in omitting all mention of Mouzah Sao Khurd and in describing the share of the defaulters in, Khaira Khurd to be two annas three pies instead of eight annas, but that this defect did not constitute a contravention of the law and that the description of the defaulting shares was insufficient. He acoordingly dismissed the suit.
40. In appeal the learned District Judge considered only the point of limitation and dismissed the suit on the ground that as the plaintiff was required under Section 33 of Act XI of 1859 to appeal to the Commissioner before the sale could be set aside and as under Section 2, Act VII B.C. of 1868, the time for appeal expired on the 60th day after the sale and as the plaintiff's appeal was in fact, lodged before the Commissioner long afterwards, namely, on the 22nd of December 1911, the appeal was clearly out of time. The learned District Judge appears to be of opinion that the appeal was, therefore, not a proper appeal and that the present suit, which was brought on the 23rd May 1912, is under Section 33 of Act XI of 1859 not maintainable.
41. The plaintiff now prefers this second appeal on the ground that the learned District Judge is wrong in holding that his suit is barred by limitation.
42. If the plaintiff's share in the two mouzahs in question did not pass by the sale, clearly the bar of limitation would not apply. The plaintiff was not called upon to appeal to the Commissioner to set aside a sale in respect of property which had not in fact been sold and the provisions of Section 33, which require that there shall be a properly framed appeal preferred to the Commissioner before a suit for setting aside the sale and for recovery of possession can be entertained, obviously do not apply. If, therefore, the plaintiff can make good the position that his properties were not sold by the revenue sale of the 15th June 1911, the suit is within time.
43. In order to determine whether or not the plaintiff's contention is correct, it is necessary to refer, first of all, to the sale notification.
44. In column 1 of the notification is the tavzi number.
45. In column 2 is the name of the mahal and pergannah.
46. In column 3 is the sadr jama of the whole estate.
47. Column 4, the heading of which is 'whether the whole estate is to be sold,' is blank.
48. The heading of column 5 runs thus:-- 'if only a share is to be sold specification of such share , is shown.' This column is filled in as follows:-- The word 'ijmal' appears first. Then follows a list of shares in 38 villages enumerated by name.
49. Column 6, the heading of which requires the names of the proprietors of the property to be sold, shows the entry--Mahabir Lal and others.
50. The heading of column 7 is: 'If only a share is to be sold, the amount of the sadr jama of such share." It shows the entry of Rs. 685-11-0.
51. Column 8 is blank, and column 9 the heading of which is: 'If only a share is to be sold, the arrears due for it,' shows the entry of Rs. 276-10-9.
52. At the bottom of the notification is an entry in the following wordsother shares except those above stated will be excluded."
53. It is admitted that in the list of villages the Collector should have included an eight-anna share of Sao Khurd and an additional five-annas nine-pies share of Khaira Khurd.
54. The question is whether not with standing these omissions the whole share in default must be taken to have been advertised for sale.
55. It is now settled law that if the notification under Section 6, Act XI of 1859, is not according to law, but nevertheless a sale is held, that sale is void and a nullity for want of jurisdiction. It is immaterial whether notices under sections 5 and 7 are issued or not, but the authorities are unanimous that the notice under Section 6 must be prepared and issued in accordance with law. Defects in service can be cured by Section 8 of Act VII B.C. of 1868, but if the contents of the notice are not such as the law demands then the matter strikes at the root of the Collector's jurisdiction and the sale is null and void. If, therefore, the omission to mention the plaintiff's entire share in Sao Khurd and part of his share in Khaira Khurd has resulted in the advertisement of a share less than the share in default, then the notice is contrary to the provisions of Act XI of 1859 inasmuch as the unit in arrear has been split up by the Collector and something less than that unit has been offered for sale. On behalf of the respondents on the other hand, it is urged that this omission is nothing but a mere defect in description and that in fact the whole share in arrear was properly advertised by the Collector.
56. The question, therefore, is in the first instance, how should we interpret the sale notification? On behalf of the respondent the learned Counsel urges that the dominant description is contained in the word 'ijmal' in column 5 and that the subsequent incorrect enumeration of the mouzahs is an erroneous description which will be rejected on the maxim falsa demonstratio non nocet cum de corpore constat (a false description will not hurt when it co-exists with the subject itself), and he relies upon West v. Lawday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 in which Lord Westbury held that Where some subject-matter is devised as whole under a denomination which is applicable to the entire land and then the words of description that include and denote the entire subject-matter are folio wed by words which are added on the principle of enumeration, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent, universal, or generic denomination, then...the entirety which has been expressly and definitely given shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars of the specific gift."
57. In my opinion this maxim is not applicable to the present case. I think the particular notification which we have to construe falls within that class of documents which was the subject of Brocket, In re; Dawas v. Miller (1908) 1 Ch. 185 : 77 L.J. Ch. 245 : 97 LT. 780. In that case, Joyce, J. reviewed all the authorities including West v. Lawday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 and made the following observations regarding the rule laid down by Lord Westbury:
Now, notwithstanding this, I think, I may say that there is certainly no rule that in a Will where there are two complete descriptions, the former shall prevail over the latter, and I cannot think that Lord West-bury meant to lay down positively that in a Will where you have once got a complete description of a subject-matter in general and collective terms, every or any subsequent enumeration of particulars must necessarily be rejected if it do not include each and every item of the particulars, which would be included in the first or general designation standing by itself.
58. In West v. Lawday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 the words, of the testator were as-follows:
Being possessed of a lease for, lives, renewable for ever, of certain lands in the country of Kerry, in Ireland, which said lands are denominated Bailydowney, Clyney, and Farranaspid, all situate in the parish of Adahoe, in the said country of Kerry.... I do, therefore, require that the aforesaid lands should, as soon as after my decease as passible, be sold.
59. It appeared that some lands called groyne were included in the lease and the question was whether those lands had passed by the devise or not. The Court held, that the dominant desciption being, contained in the words "being possessed of a lease for lives, renewable, for ever," the omiassion of groyne was only a matter of imperfect enumeration of particulars. On the other hand in Brocket, In re; Dawes v. Miller (1908) 1 Ch. 185 : 77 L.J. Ch. 245 : 97 LT. 780 the disputed words were as follows:
I devise the real estate to which I under the codicil to the will of my late father Stanes Brocket Brocket Esq., became entitled upon the death of Sarah Chamber layne, widow of my late uncle General Chamberlayne deceased, namely, the residence known as Orford House in the parish of Oakley in the said County of Essex and lands and hereditaments in the parishes of Oakley, Stanstead, Montfitebett and Henham in the same county etc." The question was whether a property in London, named No. 1 Hare Court, which, was subsequently found to be covered by the codicil to the, Will of Stanes Brocket, Brocket above referred to and to which the testatrix became entitled, passed under the devise together with the properties in the parish of Oakley in Essex. There was no evidence to show, that the testatrix was at all aware that she had any title in this property. Joyce, J., held that the specification was analogous to the specification contained in a conveyance by schedule or plan and was not merely, an imperfect enumeration of the properties intended to be devised. In other words the, specification by name and locality free from all ambiguity constituted the leading description and that 1, Hare Court, did not pass by the specific devise.
60. Now what is the position, here?, The list of mouzahs as it stands in the sale notification is perfectly self-contained and clear. There is no latent ambiguity at all. Supposing the word 'ijmal' did not occur at the top, the notification would in clear and unequivocal terms constitute an attachment of the particular property enumerated in this list and the note that other shares except those stated above would be excluded would merely signify that there were some separate accounts, which were being excluded from sale. The sadar jama in column 7 and the arrear in column 9 would merely indicate that they referred to a share in the estate comprising the particular property set out in this list, Section 10, Act XI of 1859, permits a recorded sharer of a joint estate held in common tenancy to open a separate account with the Collector in respect of his joint undivided share. Section 11 permits a recorded sharer whose share consists of the entire area of a specific portion of a land of the estate to open a separate account in respect of that specific portion. In other words, it permits a recorded sharer who has obtained a distinct portion of the estate within a ring fence to open a separate account. Section 70 of the Land Registration Act (VII B.C. of 1876) goes further and permits a proprietor who is recored as a proprietor of an undivided interest held in common tenancy in any specific portion of the land of the estate, but not extending over the whole estate, to open a separate account in respect of this undivided interest.
61. Taking the list of villages in the sale notification as it stands, it seems to me that it might perfectly well denote a share covered by an account under Section 10 or 11, Act XI of 1859, or Section 70, Act VII B.C. of 1876, and the entries in cloumns 7 and 9 as well as the note at the bottom of the notification would not be inconsistent with such a view. How then does the addition of the 'ijmal' at the top affect the matter? This word is not known either to Act XI of 1859, or Act VII B.C., of 1876, nor do I find any mention of the word in the rules published by the Board of Revenue in their Sale Manual of 1906 and their Land Registration Manual of 1909. The Manuals do speak of a residuary share, namely, the share that is left after excluding all separate accounts in the estate, and the direction is that as soon as a separate account is opened then pari passu a separate account for the residuary share is also to be opened by the Collector, in his Touzi Register. The word 'ijmal' means nothing more than joint. It is an adjective and not the name of any particular thing or part of the estate. It is a relative term and has not even the fixity attached to the word residuary.
62. It is certainly not a name like Whiteacre or Blackacre, for is it an universal or general description. It may apply to the residue left after excluding . all other accounts, but it also may apply, when a co-sharer opens a separate account under Section 70, Act VII B.C. of 1876, in respect of his undivided interest in a specific portion held jointly with other proprietors, to the residue of that specific portion which would then be capable of description as the 'ijmal' property of the other co sharers.
63. Therefore, the word 'ijmal' of itself does not materially alter the description contained in the list of villages in column 5 and furnish sufficient material for holding that it describes any residuary share at all, let alone the residuary share which it was the duty of the Collector to sell.
64. Indeed in those cases in which the word has been sought to be translated as meaning 'residuany share in arrear,' the opinion of our Courts is that it does not bear any definite meaning. In the case of Annada Charan Mukhvti v. Kishori Mohon Rai 2 C.W.N. 479 the Court observed as follows:
it is obvious that the term 'residue' is a relative term only, and that it means what is left after excluding from the whole certain specific shares and that unless those specific shares are stated, it is impossible for intending purchasers to know what is being advertised for sale and for what they are supposed to be bidding,...and we think that the meaning of Section 6, Act XI of 1859, is clear that the share to be put up for sale must be so described that there can be no mistake about it. Merely advertising that the 'residue' of an estate is to be sold without giving further particulars and stating what that residue' is, cannot be considered to be a sufficient description of any share in that estate." In that case separate accounts had been opened under sections 10 and 11 of Act XI of 1859 and the residue advertised was the residue after excluding all the separate accounts. The Court held that the description was not a sufficient description of the share in arrear.
65. To the same effect is Hem Chandra Chowdhry v. Sarat Kamini Dasya 6 C.W.N. 526. The estate in this case consisted of four mouzahs and separate accounts were opened under sections 10 and 11; firstly, in respect of eleven-annas odd in two mauzahs; secondly, of nine annas odd in the 3rd mauzah: and thirdly, of eleven annas in the four mauzahs, the remainingshare of the four mauzahs being left as the residue. In the sale notification the terms were as follows:-- "According to Act XI of 1859, the joint share excepting the separate shares is to be sold. Save and except these, all other shares are exempted from sale." The Court held that the description was not according to law and observed as follows:
Looking at this notification of sale, we observe that it gave very little or no information to the public, and unless one were to go to the Collectorate and look into the records there, he could not possibly ascertain what was the precise property to be sold, and in what villages that property lay.
66. In Amirunessa Khatoon v. Secretary of State 10 C. 63 : 13 C.L.R. 131 : 5 Ind. Dec. (N.S.) 44 the point decided was that it was not necessary when advertising an entire estate to give all the mauzahs comprising it, and in Ram Narain Koer v. Mahabir Pershad Singh 13 C. 208 : 6 Ind. Dec. (N.S.) 638 the share to be sold was a separate account and the sale notification set out the revenue due from it as well as the extent and nature of the other separate accounts of the estate and Wilson and Porter, JJ., held that it was necessary to name the mauzahs comprising the separate account and that the share to be sold was sufficiently described by referring to the other separate accounts of which the necessary particulars had been given. These two last mentioned cases do not in any way touch the first two, which require that whenever a residuary share is sold, the specification shall state the mauzahs or shares of mouzahs of which it comprises.
67. In Ismail Khan v. Abdul Aziz Khan 32 C. 509 : 9 C.W.N. 348 : 1 C.L.J. 91 the share sold was the residue left after the opening of a separate account under Section 10. The notification contained the number of the estate, the revenue of the entire estate, the revenue of the share to be sold, and the arrear in respect of which the sale was to be held. What fraction of the entire estate this residuary share represented was not stated in the notification. The majority of the Full Bench declined to decide whether Armada Charan Mukhuti v. Kishori Mohon Rai 2 C.W.N. 479 and Hem Chandra Chowdhry v. Sarat Kamini Dasya 6 C. W.N. 526 were correctly decided or whether it was sufficient to follow the description accepted in Ram Narain Kore v. Mahabir Pershad Singh 13 C. 208 : 6 Ind. Dec. (N.S.) 638 but held that whether in any particular case the specification of the share or shares is sufficient or not must depend on the facts of the case.
68. In Bhawani Koer v. Ajzal Hussain 34 C. 381 : 5 C.L.J. 425 the ijmal share contained 42 villages whereas only 38 villages were enumerated in the sale notification and some villages which ought not to have been included were alleged to have been included, while others which ought to have been included were said to have been excluded, and the Court observed as follows:
If it had been proved as a matter of fact that the villages which were excluded were in fact part of the ijwali share and if it were proved that in fact this list of villages was an inaccurate list of what constituted the ijmali share of the mahal, I should have hesitated in saying that the notification complied with the direction of the law which provides that it shall specify the estate or shares of estate to be sold. It appears...that the intention of that section is to enable the persons who intend to bid to know what it is they are going to purchase. If as a matter of fact the list was inaccurate and misleading, we should find some difficulty in saying that it complied with the provisions of that section. But in this case, we think the matter is more or less of academic interest because it has not been proved as a matter of fact, or at least our attention has not been drawn to evidence that it was established, that these villages excluded did form part of the ijmal share of the mahal in question.
69. Finally, I come to the decision of the Privy Council in Ravaneshwar Piasad Singh v. Baijnath Ram Goenku 28 Ind. Cas. 699 : 42 C. 897 at p. 908 : 2 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 550 : 42 I.A. 79 (P.C.). In this case the sale notification described the share to be sold as the ijmal snare. In the 5th column it was stated that the ijmal share could not be specified. A list of 148 separate accounts was attached to the sale notification and it was stated in a note that as separate accounts had been opened village by village, the ijmal shares could not be particularised except by excluding the separate accounts, which were given on a seprate piece of paper, It was held by the learned Subordinate Judge who tried the case in the first instance that the sale was a nullity, because the names of all the mouzahs had not been specified. The Collector gave the auction-purchaser possession of 44 villages out of which only 31 were found to be included within the ijmal share. The High Court of Calcutta were of opinion that the notification was sufficient and that if it was not necessary to enumerate the mouzahs in respect of an entire estate, there was no reason why it was necessary to do so in respect of the ijmal share. Reliance was placed before the High Court upon certain forms for opening separate accounts prescribed by the Board of Revenue, but the High Court held that these forms were not part of Act XI of 1859 and that they merely contained directions which the Collector was required to follow as nearly as possible. The High Court finally held that the sale was not a nullity.
70. It appears from the argument before their Lordships of the Privy Council that the following cases were placed before them:-- Hem Chandra Chowdhry v. Sarat Kamini Dasya 6 C. W.N. 526; Ismail Khan v. Abdul Aziz Khan 32 C. 509 : 9 C.W.N. 348 : 1 C.L.J. 91; Amirunessa Khatoon v. Secretary of State 10 C. 63 : 13 C.L.R. 131 : 5 Ind. Dec. (N.S.) 44 and Dilchand Mahto v. Baijnath Singh 8 C.W.N. 337. Their Lordships, while accepting the proposition that the sufficiency of the notice must depend on the circumstances of each case, made the. following observations:
As already observed, each case must depend on its own particular facts. What has to be considered is whether or not having regard to all the circumstances the specifications were sufficiently distinct and clear to invite likely buyers to appear and bid at the sale. It is not enough that they may go and obtain the requisite information from the Collector's Office.
71. In their Lordships opinion the particulars in the notice should be snffcient in themselves to tell purchasers what they are invited to bid for. Their Lordships, therefore, have no hesitation in agreeing with the Trial Judge that the notification in this connection was insufficient and irregular and not in compliance with the requirements of the law."
72. In my opinion we are completely bound by this authority and as the law now stands, whenever a residuary share is advertised for sale, the mouzahs comprising that share must be correctly described by the Collector. Their Lordships declined to accept the argument that it was sufficient to describe the residue by giving a specification of the separate accounts.
73. If, therefore, the term 'residuary estate' with the assistance of the information in columns 5 to 9 of .the notification and specification of the separate accounts opened in the estate does not in the eye of the law convey to intending purchasers what they are bidding for, still less does the term 'ijmal' convey the necessary information. As I have already observed, the term only means joint and in the sale notification under consideration it wholly fails to denote any particular property or share of any particular property. As the notification stands, I am unable to say whether it means the entire residuary estate after excluding the separate accounts or the residue left after opening an account under Section 70 (VII, B.C. of 1876), The word 'ijmal' in my opinion, is not a complete and distinct description of a subject which would constitute a leading description as in West v. Lauday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 to the exclusion of the particulars contained in the list of villages. From this point of view the present case is a stronger one than Brocket, In re; Dawes v. Miller (1908) 1 Ch. 185 : 77 L.J. Ch. 245 : 97 LT. 780 in which there were two descriptions each sufficient to describe a different subject-matter. Here the subject-matter described by the term 'ijmal' is uncertain, while the subject-matter described by the list of villages is definite and certain. I have no hesitation in saying that the description given in the list of villages must prevail.
74. Even if it is held that the term 'ijmal' is a sufficient description of the entire residuary estate in arrear, I am of opinion that the list of villages must be regarded as an exception or limitation and not a confirmation of the general description. If further authority were needed I would refer to Tribhovandas Jekisandas v. Krishnaram Kuberram 18 B. 283 : 9 Ind. Dec. (N.S.) 696. In that case a mortgage-deed transferred all the properties appertaining to 'an entire bhag,' but it was held that the particulars which omitted some of the properties comprised therein, constituted the leading description.
75. Again in Dwarka Nath v. Aloke Chunder Seal 9 C. 641 : 4 Ind. Dec. (N.S) 1076 it was held that the declaratory portion of a sale proclamation could not by itself override the description of ,the property in the body of the notification, although it was argued in that case that as the Court had power to sell only the tenure itself there arose an irresistible presumption in favour of the tenure being sold.
76. The respondent, however, seeks to supplement the sale notification by the other evidence in the case, and the law upon this point is summarised by Taylor in his work on Evidence as follows:-- (section 1226) (1) Where in a written instrument the description of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evidence, including proof of declaration of intention, is admissible to establish which of such subjects was intended by the author.
(2) if the description of the person or. thing be particularly applicable and particularly inapplicable to each of several subjects, though extrinsic evidence of the surrounding circumstances may be received for the purpose of ascertaining to which of such subjects the language applies, yet evidence of the author's declaration of intention will be inadmissible.
(3) if the description be partly correct and partly incorrect, and the correct part be sufficient of itself to enable the Court to identify the subject intended, while the correct part is inapplicable to any subject, parol evidence will be admissible to the same extent as in the last case and the instrument will be rendered operative by rejecting the erroneous statements.
(4) If the description be wholly inapplicable to the subject intended or said to be intended by it, evidence cannot be received to prove whom or what the author really intended to describe.
(5) if the language of a written instrument, when interpreted according to its primary meaning, be insensible with reference to extrinsic circumstances, collateral facts may be restored to, in order to show that in some secondary sense of the words, and in which the author meant to use them, the instrument may have a full effect.
77. Rule 2 corresponds with Section 97 of the Indian Evidence Act while the other rules correspond to sections 94, 95 and 96, with the exception that the Indian Law admits the authors declaration of intention in all cases. Although the case before us is a second appeal, the construction of sale notification is a mixed question of law and fact and we are entitled to look at the evidence on which the respondents rely.
78. Now in support of the contention that the sale notification advertised and attached the whole residuary share the respondents call in aid, firstly, the circumstance that the Collector could not under the law have sold a part of that share and, secondly, his order of the 5th Jane 1915, declaring under Section 14 of Act XI of 1859 that as there was not a sufficient bid for the share advertised to cover the arrear, any of the other recorded sharer or sharers were at liberty within ten days to purchase the share in arrear by paying the whole arrear due from such share. It is true that we are entitled to look at all the circumstances existing at the. time of the publication of the notification in order to ascertain what the Court intended to sell and what the purchasers thought: was advertised for sale. But it is clearly not sufficient to say that because the Collector was empowered only to sell the unit comprising the residuary share and that because the presumption of everything being correctly done applies to this case, therefore, we must assume that what he did actually advertise and what the public thought that they were buying was the residuary share. In my opinion, the Collector had, under sections 13 and 14 of Act XI of 1859, jurisdiction to sell only that which he had advertised by the notification under sections 6 and 13 and the expression 'share in arrear' in his order of the 5th June 1915 must be read as meaning that which he had advertised in the notification under Section 6 and no more. Mr. Pugh endeavoured to argue that even if the Collector advertised something less than the unit in arrear, he corrected his error by making a fresh proclamation on the 5th June. In my opinion that argument will not avail. The Collector had no jurisdiction to amend anything in the original notification under Section 6.
79. Nor is the position of the respondents improved by the Collector's subsequent proceeding. He gave the auction-purchaser a certificate, first of 25 villages on the 28th August 1911, altogether omitting therefrom Saho Khurd and Khaira Khurd, and on the 10th April 1913, that is, about a year after the present suit had been instituted he made an addition of 8 more mauzahs at the instance of the purchasers, correctly describing in his amended certificate the names of the plaintiff's mauzahs and his interest therein. The word 'ijmal' does occur in the sale-certificate, but as I have already observed it conveys no distinct and specific meaning; it is important, however, to note that even this amended certificate does not contain a complete list of villages.
80. Another circumstance to be noticed is that whereas Rs. 276-10-9 is shown in column 9 of the sale notice as the arrear due against the defaulting share, the arrear for which the share was sold on the 15th June 1911 is Rs. 226-3-9. Again while the sadar jama in the sale notification is Rs. 685-11-0 in column 8, the sadar jama in the sale-certificate is Rs. 519-10-0.
81. It may be admitted that the sale-certificate is not a certificate of title in the case of a purchaser under a sale under Act XI of 1859, and that the statements contained therein are not conclusive to show what was offered to and purchased by the auction-purchaser. And although in Lalla Bissessur Dyal v. Doolar Chand Sahoo (14) 22 W.K. 161 the Court refused to go into the facts lying behind a sale-certificate for the purpose of contradicting its terms and" held that the sale certificate was the best evidence of what the auction purchaser purchased, and although in Tantardhari Sing v. Sundar Lal Missir 7 C.L.J. 384 and in Barhamdeo Singh v. Ram Narain Singh 22 Ind. Cas. 280 : 19 C.L.J. 182 it was explained that while yon can look at the whole proceeding for the purpose of ascertaining what was offered for sale and purchased, you cannot give evidence for the purpose of contradicting the terms of your sale-certificate, I doubt whether the principles applicable to a sale under the Civil Procedure Code are also applicable to a revenue sale in which the sale-certificate is not the title-deed of the purchaser.
82. Therefore, taking the two sale certificates, the intention of the Collector and all his acts down to the 5th June 1915 as so many items of evidence for the construction of the notification, I am not satisfied that he did not attach something less than the unit in arrear, and that the bidders did not think that they were bidding only for the villages described in column 5. I think, therefore, that as he broke up the unit and advertised something less, the notification was contrary to law and without jurisdiction, and, therefore, the sale on the 15th June 1911 was also without jurisdiction.
83. The sale certainly did not pass the plaintiff's eight-annas share in mauzah Sao Khurd and his five-annas nine-pies share in Khaira Khurd that was omitted from the notification; but I go further and hold that as the whole sale was without jurisdiction, the plaintiff's two-annas three-pies share in Khaira Khurd also did not pass. If the other co-sharers of the residuary share in arrear had joined as plaintiffs, they would have been competent to recover their shares also but as they have not done so, we can only declare that the sale in respect of the plaintiff's property, namely, eight-annas share of Khaira Khurd and Sao Khurd is bad and that he is entitled to recover the same. The effect of this will be that the plaintiff will be a co-sharer with the purchaser defendant and that the plaintiff and he will be jointly liable for the revenue till a separate account is opened.
84. In the view that I take of the law the Collector is not required to specify the mauzahs when selling an entire estate or a separate account, but he is so required when selling the residuary share. As the word ijmal does not convey a sufficiently definite meaning, it might possibly be a salutary precaution to use the expression residuary estate, and to insert a note in column 5 stating that if the residuary share is found after the sale to contain property other than that enumerated in the list, that property also will pass by the sale. Such a note would not cure the irregularity resulting from an omission of mauzahs, but it would, I take it, have the effect of making Residuary Estate the dominant description and prevent the sale from becoming a nullity altogether. The sale in such a case would only be set aside upon the grounds prescribed in Section 33 of the Act.
85. I have anxiously considered what the effect of this interpretation of the law will be upon the revenue administration. It is submitted by Mr. Pugh that the Collector will be seriously hampered in the collection of arrears and that it will be almost impossible in practice to bring about the sale of residuary shares. In the absence of evidence it is not possible for me to speak with any direct authority, but I have examined the provisions of the Revenue Sales Act (XI of 1859), Land Registration Act (VII B.C. of 1876) and the registers prepared by Government for administering those Acts, and I do not imagine there will be any serious difficulty.
86. Register A of revenue-paying estates requires that the mauzahs contained in the estate should be fully specified. Register C requires that a mauzawar register should be kept. Register D requires that an intermediate register affecting changes in the general and mauzawar registers should be kept. Section 30 of the Land Registration Act requires co-sharers to give information to the Collector of the establishment of any village and Registers 12 and 12A prepared under the Land Registration Act require that whenever a separate account is opened under sections 10 and 11 of Act XI of 1859 or Section 70 of Act VII B.C. 1876, a specification of the mauzah comprising that separate account is to be furnished. There is also authority given to the Collector under the Land Registration Act to require recorded proprietors to furnish whatever information is necessary for the correct preparation of the registers. It is always possible, therefore, for the Collector to ascertain what villages or shares of villages are situated in the residuary share. The Collector incurs no responsibility in the matter and information is furnished at the risk of the recorded proprietors. If the Collector correctly describes the residuary share upon the information given by the proprietors, the notification under Section 6 is fully protected. In my opinion, therefore, the Courts are not imposing an impossible task upon the Collector in requiring him to correctly state the mauzahs or shares in mauzahs that comprise a residuary share offered for sale.
87. As the plaintiff, however, contends that he is entitled to succeed even if the sale is not a nullity, I will examine also that position. If the residuary share passed and the share in the list of villages was a mere misdescription, then the error could only be impeached by an appeal to the Commissioner under Section 25 of Act XI of 1859 and no suit would lie to set aside the sale, unless the ground of irregularity was taken before the Commissioner and substantial injury has resulted from the said irregularity.
88. In the present case the appeal to the Commissioner was made more than sixty days after the sale and was, therefore, barred. The appellant asks us to hold that under Section 5 of the Indian Limitation Act of 1908, the Commissioner was competent to admit the appeal for sufficient cause; that till he decides that the cause is not sufficient the appeal cannot cease to be an appeal and that having been brought within the statutory limit of time from the date of the rejection of the appeal by the Commissioner, the suit is within time. This argument must fail on two grounds. The first is that a time-barred appeal is not an appeal till it is admitted for sufficient cause. Mir Waziruddin v. Lala Deoki Nandan 6 C.L.J. 472 is authority for this proposition. The second ground is that Section 5 of the Indian Limitation Act does not apply to Act XI of 1859. The matter depends on the construction to be put on Section 29 of the Limitation Act (IX of 1908), which corresponds to Section 6 of the Limitation Act of 1877. There has been much conflict upon the question whether the general provisions contained in sections 5 and 7 and other like sections of the Indian Limitation Act are applicable to local and special Acts, but, in my opinion, the correct rule was laid down in Veeramma v. Abbiah 18 M. 99 : 6 Ind. Dec. (N.S.) 418 and Panchkouri Ghosh v. Pran Gopal Mukerjee 4 Ind. Cas. 70 : 13 C.W.N. 518. The latter case is important, because it relates to the Act now under consideration and the test therein applied was whether the Act was self-contained. As to what is a self-contained Act, must depend upon the terms of the Act itself. No general rule can be laid down, but I take it that what is meant is that the enactment must either expressly or by implication suggest that the general provisions of the Indian Limitation Act are not to be applied for the purpose of extending the shorter periods of limitation prescribed by the Act. For instance, it would be impossible to hold that the Indian Limitation Act has any application to fiscal Ac's, such as those dealing with customs and income-tax. In my opinion the Revenue Sales Act comes within the same category. Even since Regulation VII of 1799, when a remedy by sale of the estate in arrear was first substituted for the attachment of the person of the defaulter, the constant endeavour of the Legislature has been to perfect the machinery of law, so that the Government demand might be quickly realized and the title of auction-purchasers speedily quieted. Their Lordships of the Privy Council in Gobinda Lal Roy v. Ramjanam Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. Jur. 536 : 6 Sar. P.C.J. 356 : 10 Ind. Dec. (N.S.) 679 (P.C.) observed that sales for arrears of Government revenue were of constant occurrence and anything which impaired the security of the purchasers at those sales tended to lower the price of the estate put up for sale; that it was, therefore, of the utmost importance in the interest of the revenue paying population of India that all questions that could arise as to the validity of a sale for arrears of revenue should be determined speedily.
89. Looking at the scheme of the whole Act I have no doubt that it was never intended that the periods of limitation therein prescribed should be extended by the operation of Section 5 of the Indian Limitation Act, and I am fortified in this view by Amiunessa Khatoon v. Secretary of State 10 C. 63 : 13 C.L.R. 131 : 5 Ind. Dec. (N.S.) 44 where it was held that' a revenue sale under the Act cannot be set aside on the ground of fraud. The appeal to the Commissioner, therefore, was not an appeal within the meaning of the law, and the present suit would be barred by limitation.
90. But as I have already held that the sale was not one under the provisions of the Revenue Sales Act, the suit is not affected by the provisions which require an appeal to the Commissioner. It comes under Article 142 of the Limitation Act and is within time.
91. The learned Counsel for the respondent has drawn oar attention to the pleading in the suit and contends in the first place that the entire residuary share was sold. In my opinion plaints in this country must not be too strictly construed and all that the plaintiff means here is that a share called the ijmali' share and alleged to be the entire residuary estate was advertised for sale. That this is so is clear from the judgment of the learned Subordinate Judge. It is quite clear that at the trial the plaintiff raised the contention that the sale was a nullity by reason of the attachment of something less than the unit in arrear. Moreover the point being one of mixed law and fact and no additional evidence being required it is open to us to deal with it in second appeal.
92. The result, therefore, is that I would allow the appeal and decree the plaintiff's suit for recovery of possession. As the prayer for mesne profits has not been pressed I would not allow the plaintiff any mesne profits. The plaintiff is entitled to his costs in all Courts.
Atkinson, J.
93. It is unnecessary for me in this case to refer to the facts generally, having regard to the judgments which have been delivered by my learned colleagues. However, I desire to refer to the sale notification issued under Section 6 of Act XI of 1859. Column 5 of that notification contains a specification of the share of the property which was offered for sale to satisfy the arrears of Government revenue. The share of the mahal offered for sale is described by the general term "ijmal"; and following this general denomination there is a description given of what the "ijmal" property comprises, namely, a list of shares in 38 villages. In the notification a statement appears that other shares except those stated above will be excluded. The plaintiff is the proprietor of an eight-annas share in Mauza Sao Khurd and also an eight annas proprietor in the village Khurd. Both these villages are situated in the mahal of Kbaira in the District of Gaya. The shares in these two villages to which the plaintiff is entitled formed part of the "ijmal" property when the notification under Section 6 was published; but in the description given in the specification no reference is made to the plaintiff's eight-annas share in Sao Khurd and only a two-annas three-pies share in Mauza Khurd was offered for sale. The sale notification further states that the sale of the property described in the notification, was made to satisfy an arrear of Rs. 276-10-9 in respect of which the sadar jama is Its. 685-11-0. The sale notified under Section 6 of the Act of 1859 proved abortive; and the Collector subsequently sold the entire "'ijmali" interest under Section 14 on the 15th of June 1911 and the same was purchased by defendant No. 1, who subsequently transferred his interest in the property to defendant No. 2.
94. Mr. Manuk contends, first of all, that the notification published under Section 6 of the Revenue Sales Act of 1859 was irregular; and that the plaintiff is entitled to have the sale set aside under Section 33 of the Act, provided that the plaintiff can prove that there was substantial injury caused to him by reason of the irregularity complained of, the irregularity complained of being a misdeecription of the property comprised in the ''ijmali" share. For two reasons. I am of opinion that the plaintiff is not entitled to succeed on this ground. In the first place the plaintiff did not appeal to the Commissioner within the period of sixty days from the date of the sale on the 15th of June 193.1. An appeal was filed by the plaintiff on the 22nd of December 1911; but the same was summarily dismissed as being out of time on the 24th of January 1912. An appeal filed out of time is no appeal; and consequently the plaintiff's right to have the sale set aside on the ground of irregularity was barred by the special period of limitation provided by the Revenue Sales Act of 1859. Mr. Manuk admits the accuracy of this conclusion; but he argues that he is entitled to call to his aid the provisions of Section 5 of the general Limitation Act of 1908. He argues that if he is able to satisfy the Commissioner that he had sufficient cause for not presenting his appeal within time, that then the Commissioner would under the general law of limitation be entitled to extend the period allowed for filing an appeal under the Act of 1859, so as to make the appeal presented by the plaintiff on the 22nd of December 1911 within time. This argument is erroneous; and, in my opinion, quite unsustainable. First of all if Mr. Manuk's argument be correct, no application was made to the Commissioner under Section 5 to extend the time, even if Section 5 of the Limitation Act can be considered to be applicable to the provisions of the special limitation contained in the Revenue Sales Act of 1859. The appeal was presented out of time, after it had become barred under the provisions of Section 25 of that Act. However, in my opinion, it would not have been open to the Commissioner to entertain an application under Section 5 of the Limitation Act so as to "affect or alter" the special provisions as to limitation prescribed by the Act of 1859 itself. Section 29 of the general Limitation Act excludes the applicability of the general Limitation Act to any special or local Act having a limitation of its own. There can be no doubt that the Revenne Sales Act of 1859 is a special Act which is applicable to the lower provinces of the Bengal Presidency, or to what is known as the permanently settled districts; and was primarily designed to facilitate the recovery and collection of revenue due to Government. Lord Macnaghten, I think, in the case reported as Gobind Lal Roy v. Ramjanam Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. Jur. 536 : 6 Sar. P.C.J. 356 : 10 Ind. Dec. (N.S.) 679 (P.C.) gives very cogent reasons why the general provisions of the Limitation Act should not be held to apply to the special provisions of the Act of 1859. The title of the purchasers acquired under a revenue sale should not be exposed to the risk and danger of being challenged and defeated by any uncertainty of procedure under the Revenue Sales Act. Mr. Justice Brett sitting alone in a case reported as Panchkouri Ghosh v. Pran Gopal Mukerjee 4 Ind. Cas. 70 : 13 C.W.N. 518 so held, on the ground that the Revenue Sales Act was a complete Code in itself, quite independent of the general law of limitation. That decision has never been impeached notwithstanding the fact that there has been a erreat conflict of authority in India on this point. However, I entirely agree with the reasons given by their Lord.-ships in the case reported as Veeramma v. Abbiah 18 M. 99 : 6 Ind. Dec. (N.S.) 418 in which all the authorities are considered; and applying the principle laid down by their Lordships in that case, and that laid down by Brett, J, in the case to which I have referred, I hold that in the present case the general provisions of the Limitation Act have no application whatsoever to the Revenue Sales Act of 1859. Secondly in my opinion, on the first branch of Mr. Manuk's argument the plaintiff's case must fail because he has not proved that substantial injury has been caused to him by reason of the irregularity complained of. However, it is unnecessary to further consider this aspect of the case having regard to the view I hold on the question of limitation.
95. The second argument put forward by Mr. Manuk on behalf of the plaintiff is that the sale which was effected by the Collector on the 15th. of Juno 1911 was a nullity; or in the alternative that the plaintiff's property to the extent of eight annas share in Mama Sao Khurd and five annas odd in Mauza Khurd did not pass to the defendant No. 1 under the sale effected by the Collector. This is the real and vital question in this case; and it appears to me that this argument must be governed by the answer to the question as to what in fact, and in law, passed by the sale to the defendant on the 15th of June 1911? The answer to this question entirely depends upon the construction of the property described and offered for sale under the sale notification published under Section 6. What, therefore, did the notification under Section 6 offer for sale? It is contended that the term "ijmal" is a general denomination and description of a certain block or piece of land offered for sale and is quite capable of being ascertained definitely and with certainty, irrespective of the enumeration set out in the notification describing the property comprised within the "ijmal." In fact it is suggested that the ijmali share of a mahal is just as much a known factor as if one was to speak or refer to the known entity of the lands of Blackacre or Whiteacre. The law, I think, with regard to the description of property offered for sale, whether it is described in general terms or by means of a schedule, may be stated as follows:--Where the principal words of the description lack the certainty necessary for the rejection of the subordinate description as falsa demonstratio, and this subordinate description can be read as limiting the principal description, it should be treated accordingly. This was the law laid down by Lord Chelmsford in the case of Slingsby v. Grainger (1859) 7 H.L.C. 273 : 28 L.J. Ch. 616 : 5 Jur. (N.s.) 1111 : 11 E.R. 109 : 115 R.R. 46. And where the principal description is in form specific, yet if it lacks certainty it will be restricted by the general reference to the words of description: In re Seal, Seal v. Taylor (1894) 1 Ch. 316 : 63 L.J. Ch. 275 : 70 L.T. 329. If the principal or general description of a property is followed by a schedule of the property comprised in that description, then only that which is comprised in the schedule will pass: Barton v. Dawes (1850) 10 C.B. 261 : 19 L.J.C.P. 302 : 138 E.R. 106 : 84 R.R. 562 and Cort v. Sagar (1858) 3 H. & N. 370 : 27 L.J. Ex. 378 : 117 R.R.731 : 157 E.R. 513. The dictum of Lord Westbnry in West v. Lawday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 is primarily applicable only to the construction of Wills. In Brocket, In re Dawes v. Miller (1908) 1 Ch. 185 : 77 L.J. Ch. 245 : 97 LT. 780 Mr. Justice Joyce considered the principle enunciated by Lord Westbury and he says:-- "Notwithstanding this, I think, I may say that there is certainly no rule that in a Will where there are two complete descriptions, the former shall prevail over the latter; and I cannot think that Lord Westbury meant to lay down positively that in a Will where you have once got a complete description of the subject-matter in general and collective terms every or any subsequent enumeration of particulars must necessarily be rejected, if it do not include each and every item of the particulars which would be included in the first or general description standing by itself." In West v. Lawday (1865) 11 H.L.C. 376 : 13 L.T. 171 : 11 E.R. 1378 : 145 R.R. 238 not with standing the fact that the Will contained a devise of property in general terms, yet there was a specific enumeration and description given of the property comprised within the terms of the general devise. And on the facts of that particular case Lord Westbury held that the subsequent description did control and limit the prior general denomination of the lands devised by the Will. However, it appears to me, on the authorities, that each case must depend, more or less, upon the construction of the particular document in question in each case, whether it be a deed, a Will, or a notification of sale. "Ijmal" is a general or generic term. It may be intended to apply to the residuary interest of the joint owners of the estate after individual corsharers have opened separate accounts in respect of their separate shares. The ijmali interest may be an entity or denomination of land or an interest in land which may vary from day to day. It is quite uncertain in itself; and the Land Registration Act clearly shows that the ijmali interest may and can be defined, if right principles are observed by the. Collector; with certainty with regard to each, share in each mauza respectively comprised; within the ijmali interest or share. I hold that in this case the term "ijmal" as used in the notification for sale prescribed by Section 6 of Act XI of 1859 is restricted by the general description of the ijmali shares which the Collector offered for sale;; so as to show that only the described parts of the ijmali share were offered for sale. This view is strongly supported by the detsision of the Privy Council in a case reported as Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas. 699 : 42 C. 897 at p. 908 : 2 L.W. 355 : 19 C.W.N. 481 : 17 M.L.T. 321 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 550 : 42 I.A. 79 (P.C.). I feel myself, unable to distinguish the principle of that decision from the facts of the present case; and I think that so long as the decision of the Privy Council remains unaltered I am conclusively bound to follow the law laid down by their Lordships' Board. In that case the "ijmali" share was offered for sale with the following description: "the ijmali share cannot be particularised owing to separate accounts having been opened. The share to be sold forms a separate estate after excluding the share in respect of which separate accounts have been opened." The learned Subordinate Judge who tried that case held that the description so given in the notification of the sale was an irregularity which rendered the whole sale a nullity and void as being without jurisdiction. The learned Subordinate Judge based his judgment upon the fact that the shares in each mauza comprised in the "ijmal" had not been set out specifically in the notification for sale. The learned Judges of the Calcutta High Court disagreed entirely with the view of the Subordinate Judge, and held that the description of the property sold as stated was sufficient in law to enable any intending bidder to know what he was bidding for. However, their Lordships of the Privy Council reversed the decision of the Calcutta High Court and restored the decision of the learned Subordinate Judge. In the course of their Lordships' judgment they say as follows: "In view of this divergence of opinion their Lordships have examined the evidence for themselves and they have come to the conclusion that the view of the Trial Judge both as regards the value and the fact that the lowness of price was due to the defective-ness of the notice was well founded," I take that decision to mean that the word "ijmal" is not an adequate or sufficient description per se of the property offered for sale under Section 6 of the Revenue Sales Act of 1859 and the Collector in effecting such a sale must define with particularity the property comprised in the "ijmali" share: offered: for sale, If this viaw be right, and I believe it is, then it follows of necessity that if it is incumbent upon the Collector to describe the property comprised within the ijmali share, then he must do so with accuracy and with particularity. In the present case there was an obvious and a patent irregularity in the description of the ijmali property offered for sale--that is conceded--one entire share in a village was completely omitted and a five-annas odd share in another village was also omitted. There was thus not a complete enumeration of the several shares comprised within the ijmali interest of property offered for sale. If the construction that I put upon the notification be correct on the authorities which I have referred to, then there was a breaking up or dismemberment of the revenue unit which rendered the entire sale a nullity: because it is conceded that the Collector cannot sell part only of the revenue unit liable for arrears of revenue. He must sell the entire share and interest liable for the arrears, and he cannot break it up into parts. Their Lordships of the Privy Council have held that Section 6 of Act XI of 1859 is protective of the interest of the proprietors of the properties to be sold; and the provisions of the Act must be strictly adhered to. Any departure from the terms and conditions of the Act renders any sale made under such conditions without jurisdiction; and such sale becomes a nullity in law. Acts similar to the Act of 1859 have always b een strictly construed, because they involve the forfeiture of the interest of the proprietors of property merely for the nonpayment of Government revenue. It is essential, therefore, that the governing authority, vested with statutory powers, should be coerced and obliged to act strictly within the statutory authority conferred on them by the Act, Therefore, I hold that when the, Collector in the present case notified for sale only a part of the ijmali share in respect of which there was an arrear of revenue, he acted without jurisdiction and that consequently the sale was a nullity in point of law. The right of the subject is more sacred to me than the mere possibility of any inconvenience that may be caused to the Collector.
96. However, I think that on a further ground this sale is also void. In the case reported at Raja Thakur Barmha v. Jiban Ram 21 Ind. Cas. 936 : 18 C.W.N. 313 : 12 A.LJ. 156 : (1914) M.W.N. 118 : 26 M.L.J. 89 : 15 M.L.T. 137 : 19 C.L.J. 161 : 16 Bom. L.R. 156 : 41 C 590 (P.C.) dealing with a sale under the Code of Civil Procedure, their Lordships of the Privy Council laid down that the property that passed by a sale in an execution proceeding under the Code of Civil Procedure was the property "attached" and nothing else. Applying the principle of that decision to the present case, the sale notification in the present case corresponds to the order of attachment in the case cited, and thus one is fortified in arriving at the conclusion that the sale was a nullity, applying the authority of the decision of Lord Moulton in the case referred to, where it is laid down that all that can be done is to effect a transfer of the property described in the order of attachment, which corresponds in this case to the notification, If the property offered for sale under the notification published under Section 6 was of a clearly defined and limited character, the Collector could not, in my opinion, under the sale effected by him under Section 14 of the Act of 1859, alter or vary or enlarge the property offered for sale, so as to make it inconsistent or at variance with the property notified for sale under Section 6. He could only offer for sale the share or the property described in the sale notification; because the Collector's jurisdiction under Section 14 follows as a natural sequence and consequence of the property offered for sale by the notification under Section 6. Therefore, in my opinion, even though the Collector may in fact have, by the sate held by him on the 15th of June 1911 sold, and intended to sell, the entire ijmali interest in the mahal in question, nevertheless he exceeded bis jurisdiction by offering for sale property or shares of property which were not offered for sale under Section 6. And consequently the sale of the 15th of June 1911 under Section 14 of the Act of 1859 must be held to be a nullity on the ground that it was inconsistent with the terms of the property notified for sale under Section 6.
97. On both these grounds it appears to ma that there has been an excess of jurisdiction, or absence of jurisdiction; and that consequently the sale is a nullity. Both these matters, are quite independent of Section 33; and the plaintiff is entitled to avail himself of the absence of jurisdiction in the Collector to effect the sale by challenging the entire proceeding. No doubt the pleadings ate defective and cannot be said to raise the true issue for decision; but, it is not denied that the plaintiff did urge before the Trial Judge that the sale was a nullity by reason of the fact that his eight-annas share in Sao Khurd and five-annas odd share in Mauza Khurd had been omitted from the sale notification; and consequently did not pass at the sale effected by the Collector. Charged with the administration of the law founded on equity and good conscience, I consider that it would be unjust if we were to deprive the plaintiff, owing to any defect in the pleadings, from egging that the sale effected by the Collector was a nullity in point of law on the ground that there had been an excess of jurisdiction, particularly when that ground was urged before the Trial Judge and completely ignored by the lower Appellate Court. Accordingly I would hold that the plaintiff is entitled to the declaration he seeks and I would set aside the entire sale; and allow this appeal with costs.