Lord Atkinson :-

This is an appeal from a decree, dated the 8th July, 1919, of the High Court of Judicature at Fort William in Bengal which reversed a decree, dated the 2nd April, 1917, of the Subordinate Judge, Fourth Court of the 24-Parganas.

The main question for decision in the appeal is whether or not a sale of revenue-paying estate purporting to have been carried out under the Bengal Revenue Sales Act, XI of 1859, in respect of unpaid arrears of revenue, and purchased by the appellant Satish Chandra Chatterji (now dead) was good and valid.

The Subordinate Judge before whom the case was tried decided this question in the affirmative; the High Court decided it in the negative and made the decree hereafter mentioned.

For convenience sake the several parties to the suit may be thus denoted; the appellant by his first name, Satish; the first four respondents by their family name of Roy : the fifth respondent by the name of Akshoy; the sixth by that of Sitanath; and the formal respondent by the name of Kali Dasi.

The facts out of which the appeal has arisen are somewhat complicated. They may be stated as briefly as is needful as follows :

The estate purported to be sold was the Towzi, No. 2402. It was entered on the Roll of the Collector of the 24-Parganas as subject to the payment to the Govern ment of an annual revenue of Rs. 398-9 annas. It comprised two villages, Atpur and Panditnagar. It was held jointly by one Hemada Kantha Roy, the father of the formal respondent, and the Roys. The estate had never been formally or, legally partitioned, nor the entire revenue apportioned, but the co-owners arranged among themselves to pay to the Govern ment separately their respective appro priate shares of the revenue. Hemada paid separately one-third and the Roys together two-thirds. Hemada had, some years before the sale complained of, mort gaged his one undivided third of this zemindari to a certain Shebait, living in the vicinity, who subsequently assigned this mortgage to the Roys, the members of that family thus becoming owners of two undivided thirds of the Towzi and mortgagees of the remaining undivided one-third. At the date of the alleged sale a sum of Rs. 3,655 odd was due upon this mortgage. In the month of January, 1915, if not for some time earlier, Hemada was very ill. In the early days of that month he was confined to bed, and died on the 10th day of it.

Hemada for some considerable time had had in his employment as manager of his estate Sitanath, the sixth respondent. This manager - not from want of funds, that is not suggested - left unpaid the instalment, due in the month of Septem ber, 1915, of the revenue payable in res pect of his employer's share. This instal ment only amounted to the paltry sum of Rs. 26-4-8.

It is charged that Sitanath withheld the payment of this instalment deliberately with the design of bringing about a sale by the Government of the whole Towzi, the revenue never having been appor tioned, with the result that the mortgage held by the Roys would, if the sale took place, be annulled, to their great pecu niary loss.

The revenue being thus in arrear, the Collector, acting under the powers con ferred upon him by the provisions of Ben gal Revenue Sales Act, XI of 1859, on the 8th January, 1915, put up for sale the interest of all, the joint co-owners in the entire Towzi, and sold it to Satish, who was apparently, the highest bidder at the auction, for a sum of Rs. 9,200.

The Roys immediately appealed from the order of the Collector, declaring Satish the purchaser, to the Commissioner. It is said that they based their application to have the sale set aside on the ground of fraud as well as of irregularity in the mode in which the sale was constituted and conducted. No evidence has, however, been given to establish this, nor have the Board been referred to any authority to show that the Commissioner would have had jurisdic tion to inquire into such a charge, and the terms of the order made by the Com mission