1952 Supreme(SC) 79

SUPREME COURT OF INDIA
2nd December 1952
MAHAJAN, S.R. DAS AND BHAGWATI, JJ.
Gunendra Nath Mitra - Appellant
Versus
Satish Chandra Hui and others - Respondents.
Civil Appeal No. 173 of 1951.
Advocates appeared
Shri Panchanan Ghose, Senior Advocate (Shri S. N. Mukherjee, Advocate, with him), instructed by Shri Sukumar Ghose, Agent - for Appellant; Shri Sarat Chandra Jana and Shri Bijay Kumar Bhose, Advocates, instructed by Shri S. C. Banerjee, Agent (for No. 1); Shri Arun Kumar Dutta, Advocate, instructed by Shri S. C. Banerjee, Agent, for No. 2 (b) and 15 - for Respondents.

Headnote:Bengal Land Revenue Sales Act, (XI of 1859), Ss. 6,13,14 and 37-Estate consisting of separate shares-separate accounts-all shares in default- Sale of all the shares for arrears due from each-Whetbersale of entire estate-Right of purchaser to annul undertenures-Form of notification of sale.

       Touzi No.f2409 of the IMidnapor~ Collectorate was distributed into two shares, one being a separate account bearing No. 249/1 and the other heing the residuary share. Both these shares came in course of time to be held by a single person J and after his death by his two sons K. and S. defendants 2 and 3. The plaintiffs who had interest in the patni and also status of occupancy ryots or under-tenure holders sold their patni interest .

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       1. From Ulfat Hussain v. Kali Ram. A.J.R. 1948 Pat. 422. At the time of sale of their patni interest they were heavily indebted to their landlords who filed a suit of arrears of rent. While this suit was pending the landlords failed to pay the March 1939 kist of the revenue and cesses of the touzi in both the accounts, with the result that both the undivided half-share of the touzi represented by separate account No. 1 and by residuary accounts were advertised for sale in June 1939, under section 6 of the Bengal Land Revenue Sales Act, 1859. The notice advertising the sale notified sale of the shares in the estate as such and did not state that the entire estate would be sold. Both these shares were actually sold on the issue of a single notice and at a single sale and were purchased by defendant 15. The sale certificate showed that what was certified to l1ave been purchased by defendant 15 was the separate account share as also the residuary share making up between them the totality of the touzi.

       In January 1940, defendant 15 in exercise of the rights conferred by section 37 of the Act as purchaser of an entire estate in the revenue sale served a notice on the Mahal expressing his unequivocal intention to annul and avoid alluoder tenures including patnis and darpatnis. On the same date he was alleged to have taken possession of some plots of land in possession of under-tenure holders, encumbrance holders and niskardars.

       The point that arose out of this sale was whether defendant 15 purchased the entire estate or two separate shares only. The trial court held that at the revenue sale the entire touzi did not pass to the appellant and he had acquired no right to annul or avoid the under-tenures and encumbrances. In appeal to the High Court it was contended that the revenue sale, though held in fact under section 13 of the Act, should be deemed to have been held under section 3 and that the appellant had acquired all the rights of the purchaser of an entire estate. The High Court negatived this contention and observed that on a plain reading of section 13 the contention could not be sustained, the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts and the liability of the entire estate for sale for revenue arrears and that both these conditions were fulfilled in this case. There was a further appeal to the Supreme Court.

       Held (dismissing the appeal): (1) What was actually put up for sale were two separate shares in the estate which made up the totality of the estate. The sale could not be deemed to have been of an entire estate on the ground that both the shares sold constituted the totality of the estate, and the purchaser was not entitled to tbe privileges conferred on the purchaser of an entire estate by S. 37 of the Act. Under the Act if the Collector proposes to sell the entire estate where there are separate accounts for the several shares which constitute the estate, he has first to close the separate account or accounts 01 merge them into one demand and then he has to issue a notification for the sale of the entire estate under S. 6 of the Act and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate. The notification issued under S. 6 of the Act was conclusive as to whether the subject-matter of the sale was the entire estate or the separate shares constituting the estate, and in t his case it was of separate shares. - Order 6, Rule 2.

       Held2: "The facts from which an inference of resettlement has been drawn by the courts below, were alleged in the plaint and on those facts such an inference could be justifiably raised. The plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants. In those circumstances the absence of a specific pleading as to resettlement could not in any way be said to periodic defendant 15s case. Upendranathpal having treated the plaintiffs as tenants, defendant 15 has no right to question their interest and it must be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it.