Patna High Court
Saiyed Muhammad Jawad Husain vs Maharaj Kumar Gopal Saran Narain Singh on 18 February, 1921
Equivalent citations: 80IND. CAS.223, AIR 1921 PATNA 479
JUDGMENT Mulick, J.
1. This is an appeal preferred by Syed Jawad Hussain against an order by the Subordinate Judge of Gaya refusing be set aside a sale held on the 25th April 1919. The application to set aside the sale was made on the 12th May 1919 and was finally disposed of by a judgment dated the 28th June of that year.
2. The first ground taken before us is, that the sale-proclamation was irregular in so far as it notified a charge of Rs. 2,835-9-1 due under a rent-decree dated the 14th August 1916 on account of previous arrears and also a charge of Rs. 8,492-0-6 on account of rent due from the Bhado kist of the year 1322 to the year 1325 f. s. for which a suit was then pending in the Court of the First Subordinate Judge of Gaya.
3. It is contended that under the Bengal Tenancy Act the arrears for the years in suit wore the only charge for which the tenure could have been brought to sale and that the sale-proclamation was irregular in so far as it suggested that the tenure was liable to satisfy the demands due against it in respect of arrears which had accrued previous to the suit or between the date of the suit and the date of the sale. It is urged that in consequence of this irregularity the price fetched at the sale was considerably below the true value and that the appellant is entitled to a reversal of the sale.
4. I think it must be admitted that this complaint is well founded. The case of Faez Bahaman v. Ramsukh Bajpai 21 C. 169 : 10 Ind. Dec. (N.S.) 746 is authority for the proposition that the landlord cannot sue the auction-purchaser for any rent which accrued before the date of his auction-purchase and that the only person liable to pay that rent is the tenant judgment-debtor. But that case did not decide what would be the equities between the landlord and the auction-purchaser if the latter does in fact buy subject to such a charge. That point came up for decision in a later case namely, Haradhan Chattoraj v. Kartik Chandra 6 C.W.N. 877, and it was there held that if the auction-purchaser purchases a tenure sold subject to prior charges for rent he cannot in a subsequent suit by the landlord be heard to repudiate the liability created by his act. A question was raised in that case whether it was at all legal to sell the tenure subject to a liability for past arrears but upon that point the learned Judges did not express any opinion and it was not decided whether the judgment-debtor could ask for the reversal of the sale on the ground of material irregularity and substantial loss. Here that ground is now taken by Mr. Kulwant Sahai on behalf of the judgment-debtor.
5. In my opinion the plea of irregularity must be accepted. The law does not hold the auction-purchaser liable to pay off antecedent arrears of rent and therefore any statement in the sale proclamation implying such a liability was clearly wrong. The judgment-debtor is entitled to have the sale set aside if he can prove that the price fetched at the sale was an adequate price taking into account the charges notified in the proclamation.
6. Now in this case the value of the property as disclosed by the evidence does not appear to be anything near the sum of Rs. 60,000 which is the figure put upon it by the appellant. The learned Judge in the sale proclamation has after enquiry entered the value at Rs. 33,387. He has also shown in the sale-proclamation the valuation put by the decree-holder which was Rs. 5,000 but in the circumstances I do not think this was an irregularity. The evidence now given before us in support of the valuation at Rs. 60,000 consists of certain Jamabandi papers for the years 1323, 1324 and 1325 F.S. and of certain survey khatians showing that the Nakdi or cash rental of the tenure amounted to Rs. 3,129 per annum. It is contended that the average annual income from the property both from haoli and nakdi rents amounted to Rs. 4,897, exclusive of the income from three mausas Domia, Sheimbigh and Nima. It is contended that the statement of Amir Hasan in a previous case and the survey khatian show that the cash rental from these villages in respect of appellant's share amounts to Rs. 506. Adding this amount to the annual rental mentioned above, the total rental of the tenure would come roughly to Rs. 5,402 and after making deductions for Mokarrari rents, cesses and collection charges, it is estimated by the appellant that his net annual income from the property was Rs. 2,698. At 20 years purchase the capitalised value would be Rs. 54,000; and adding to that a sum of Rs. 1,800 which is estimated to be the value of the 72 acres of bhaoli lands in mauza Nimia, the total valuation of the tenure would come to very nearly Rs. 56,000. In support of this valuation oral evidence is given by the Patwari of the appellant and a deposition is also filed which was taken from the present auction-purchaser in a previous case and in which he appears to have made various admissions leading to the inference, that the value of his property was about Rs. 60,000.
7. Now the learned Subordinate Judge has gone into all the evidence given on the point of valuation and he has recorded his deliberate opinion that the claim is exaggerated. He does not rely upon the Jamabandis because they are not the originals, and he thinks that having regard to the fact that the sale was a forced sale and making allowance for the charges notified in the sale proclamation he comes to the conclusion that the sum of Rs. 15,600 which was fetched at the auction was a fair price under the circumstances. It is to be remembered that the auction-purchaser has undertaken liability to discharge the demands for anterior rents amounting to a sum of Rs. 12,000 odd, and if this demand is added to the sale price, the total comes to a little over Rs. 27,000. Having regard to the fact that the sale was held in execution of the Civil Court decree and to the fact that the property is situated at a considerable distance in a jungly tract, I cannot say that the finding of the learned Subordinate Judge is incorrect. Moreover looking at bid sheet it does not appear that there was any paucity of bidders. The sale occupied part of one day and was adjourned till the following day, and excluding the auction-purchaser there were five other bidders who appear to have kept up a spirited contest. Therefore, the appellant fails upon the preliminary condition which it is necessary for him to establish. He has not proved satisfactorily that the purchase price was inadequate.
8. Then as regards the question of service of notice and sale proclamation which is the other irregularity alleged, the auction-purchaser has examined three witnesses, namely, the Civil Court peon, the identifier and a man who seems to be the servant of the auction purchaser. The sale proclamations had to be served in 19 villages and between the report submitted by the Civil Court peon and the evidence given by him and by the identifier in Court, there are undoubted discrepancies. It is contended that these discrepancies are fatal and point to the inference that no service took place as alleged on the 12th and 13th March, but that a service return was manufactured by the peon after he returned to head quarters and that there has been deliberate fraud by suppression of the necessary notices. The Subordinate Judge, however, records that he was thoroughly satisfied that the peon and the two witnesses, who corroborated him, were witnesses of truth. Having regard to the fact that the witnesses were deposing in regard to matters that took place several months before, the discrepancies in my opinion do not necessarily indicate that the peon has manufactured a false return. He does not appear to have had any interest in deposing falsely in this case and the probabilities are that if it had been the intention of the decree-holder to sell the appellant's tenure by suppressing the necessary proclamations and notices, he would have taken good care to make a more complete and consistent case in Court in regard to this matter. The result, therefore, is that the irregularities complained of in the matter of service of sale notices and proclamations have not been proved.
9. There was, however, an irregularity in the frame of the sale proclamation, but as substantial loss has not been established the appeal must fail.
10. It is said that the decree-holders have drawn out a sum of Rs. 3,000 out of the surplus sale proceeds in the hands of the Court in satisfaction of the decree-holders' demands for previous years. It does not, however, seem quite clear from the order sheet whether this is a fact. The auction-purchaser admits that a decree has been passed against him making him liable to pay to the landlord the sum of Rs. 12,000 odd due on account of previous arrears. So far, therefore, as the judgment-debtor-appellants is concerned he is in my opinion relieved from the liability to pay that sum, and if it is a fact that the decree-holder has in addition to the claim under this decree realised a sum of Rs. 3,000 from the surplus sale proceeds which really belongs to the judgment-debtor, then the judgment-debtor is entitled to proceed against the decree-holder for that sum elsewhere. So far as this appeal (M.A. No. 190 of 1919) is concerned, I do not think there is any ground shown for interfering with the orders of the lower Court. The appeal is dismissed with costs which will be payable to the auction-purchaser-respondent only.
11. As regards appeal No. 81 of 1919, the point taken by the learned Vakil for the appellant, namely, that the Subordinate Judge was wrong in deciding that the decree was a rent decree and that the execution would proceed in accordance with provisions of Chapter XIV of the Tenancy Act has not been pressed. The appeal is, therefore, dismissed without costs.
Bucknill, J.
12. I entirely agree with what has been said by my learned colleague. I should like, however, to point out that I wish to guard myself from being understood to say that in the present state of authority it has been clearly held that it is illegal to introduce into the conditions of a sale of this character an instruction that the sale takes place in execution of the decree but subject to other encumbrances whether relative to arrears of rent or otherwise. That such a statement may be irregular under certain circumstances when the other charges specified relate to arrears of rent I think there can be little doubt but that it is of such a character that the whole must be regarded as voidable or that it ipso facto vitiates the sale is not a proposition to which I must be taken to defer.
13. As has been pointed out by Mr. Justice Mullick, it may very well be that where the effect of the introduction of the statement of the existence of prior encumbrances is such as to affect adversely the proper position of the judgment-debtor it may be the proper and open course for him to apply to this Court in order that the sale may be set aside.