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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 24 of 155)
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sale of the 20th August 1886, that, they having abided by the conditions
to which the law subjected it as to the pre-emptive right, the sale should
have been confirmed in their favour, and that, the order of the 17th Sep-
tember 1886, having been passed against them by the Revenue Court
executing the decree, their proper remedy lay in a civil suit, such as this,
in which they seek to set aside that order and to obtain possession of the
property by enforcement of their statutory right of pre-emption. Nor
should the ruling of this Court in Shib Sahai v. Thika Ram (1) be regard-
ed as opposed to this view, for in that case, as far as it is intelligible from
the report of the judgment, it can scarcely be said that the learned Judges
intended to rule, as the head-note wouJd represent, that after a Court
executing a decree has disallowed a pre-emptive claim under s. 14i Act
XXIII of 1861, though the pre-emptor duly observed the conditions of
the sale, he is to be relegated to two separate suits : one for a declaration
that he was entitled to the pre-emption of the property by substitu-
tion for the auction-purchaser, and another for recovery of possession
of such property by enforcement of the right of pre-emption. The
plaintiffs in the present case sued for declaration of their pre-emptive
right in respect of the auction sale of the 20th August 1886 ; they also
prayed for setting aside the Revenue Court's order of the 17th September
1886, whereby their claim was disallowed, and they further prayed for
recovery of possession of the property by enforcement of their pre-emptive
right. Such a suit seeks all that it could pray for and is in my opinion
properly framed, and in no sense either premature or unmaintainable.
Whether it succeeds or fails is a matter of the merits which must be
considered with reference to the requirements of the law as to the right

(1) N.W.P.H.O.R. (1875), p. 97.
146



YII]



BAIJ NATH V. SITAL SINGH



13 All. 235



of pre-emption in respect of auction sales in execution of the Bevenuo
Court's decrees in these Provinces.

I have already stated my reasons for holding that the provisions of
s. 177 of the Kent Act (XII of 1881) refer to and must ba read with the
provisions of the Land Revenue Act (XIX of 1873) [234] relating to sales
for arrears of Government revenue. S. 150 of that Act provides the
various processes for recovery of arrears of revenue, and clause (g) lays
down that one of these is " by sale of such patti or of the whole mzhal "
and clause (h}, going further in the same direction, prescribes another
method to be " by sale of other immoveable property of the defaulter."
Thus there are two kinds of sale contemplated by these two separate
clauses. The former is provided for by s. 166 which authorizes the
Collector, under certain conditions, to "sell by auction the patti or mahal
in respect of which such arrear is due," and s. 167 provides that "land
sold under the last preceding section shall be sold free of allincumbrance3,
and all grants and contracts previously made by any person other than
the purchaser in respect of such land shall become void as against the
purchaser at the auction sale." The second class of sales to which
clause (h) of s. 150 relates is provided for by s. 168 which runs as
follows :

"If the arrears cannot be recovered by any of the above processes,
and the defaulter owns any othar mahal or any share in any other mahal
or any other immoveable property, the Collector of the District may
proceed against such mahal or other immoveable property as if it were the
land on account of which the revenue is due, under the provisions of
this Act :

Provided that no other interests save those of the defaulter alone shall
be so proceeded against, and no incumbrances created, or contracts entered
into by himMn good faith, shall ba rendered invalid by such proceeding."

We are directly concerned with this .section in this case, as it was
admitted in the course of the argument that the auction sale of the 20th
August 1886, was not euch as s. 166 of the Act contemplates, and it
must therefore have been held under s. 168. Tnis being so, it is important
to notice : first, that the section contemplates sale of "any share in any
other mahal. that is, any fractional share, and, secondly, that "no other
interests save those of the defaulter alone " can pass by such sale.

[235] Sections 169 to 187 lay down various rules as to the manner in
-which sales by auction are to ba held and the purchase-money is to be
deposited and other similar matters, and -then comes s. 188 under which
pre-emption is claimed in this case. The section requires close consider-
ation, as its provisions are the solitary ground of the plaintiff's right of pre-
emption, and, as I have shown at the outsat, if the case falls beyond the
exact scope and purview of that section the claim for pre-emption must
necessarily fail, as no other statutory authority is relied upon, and the
general law of pre-emption will not apply to compulsory sales. The
section runs as follows :

" Where any land sold under s. 166 is a patti of a mahal, any recorded
co-sharer, not being himself in arrear with regard to such land, may, if the
lot has been knocked down to a stranger claim to take the said land at the
sum last bid ; provided that the said demand of pre-emption be made on the
day of sale and before the officer conducting the sale has left the office for
the day, and provided that the claimant fulfil all. the other conditions of
the sale." .,.. ./

147



1690

JUNE 21.

APPEL-
LATE
CIVIL.

ISA. 221 =

11 A.W.N.
(1891) 68,



13 All 236



INDIAN DECISIONS, NEW SERIES



[Vol.



1890 In regard to the interpretation of this section the argument on

JUNE 21. behalf of the defendant-appellant, Baijnabb, may be analyzed under three
heads, namely.

APPEL- (1) that the pre-emption provided by the section applies only to sales

LATE under s. 166 and not to sales under s. 168 such as the sale in this oase.

(2) that it applies only to sale of a whole patti of a mahal and not
to a fractional share of a patti, as the share of a Lala Singh which was sold
13 ft. 221= O n the 20th August 1886, in respect of which pre-emption is claimed.
11 A.W.N. (3) that the plaintiffs-respondent, Sifcal Singh, being a share of another

(t89I) 88, patti cannot be recorded as a "recorded co-sharer " within the meaning
of the section so as to entitle him to pre-emption.

Now in regard to the first of these points, it is true that the
s. 188 mentions only sales under s. 166 and the right of pre-emption would
at first sight appear to be limited to such [236] sales only, but s. 168,
whilst authorizing the sale of " any share in any other mahal," distinctly
provides that such share is to be sold "as if it were the land on account of
which the revenue is due, under the provisions of this Act.'"' I am of
opinion that, inasmuch as s. 166 is the only provision in this behalf,
these words render all the incidents of sales under s. 166, including pre-
emption, applicable also to sales under s. 168, with the exception of what is
provided in the proviso, namely, that only the defaulter's interest passes
" and no incumbraoces created or contracts entered into by him in
good faith shall be rendered invalid by such proceedings," as would
have been the case under s. 166, if the body of the section had been
allowed to stand without the proviso. The proviso cannot be regarded
as a surplusage, and it could be required only if the body of the section
imported all the incidents and rules relating to sales under s. 166, which,
according to my opinion, it does. I therefore hold that the pre-emption
provided by s. 188 applies also to sales under s. 168. The case of Narain
Singh v. Muhammad Faruk (1) is not opposed to this view, because all that
that ruling specifically laid down was that the provisions of s. 14 of
Act XXIII of 1861 as to the right of pre-emption were limited to sales in
execution of Civil Courts' decrees and could not be extended to sales in
execution of decree passed by the Revenue Courts ; and the learned Judges,,
before expressing any view as to the point now under consideration, began
by saying that if the present Kent Act admits of the assertion of a
pre-emptive title in cases of a sale in execution of decrees, the suit should
have been founded on some section in that Act," and they then, without
deciding the question, expressed their inclination to be that the effect of
s. 177 of the Rent Act, read with s. 188 of the Revenue Act, was to give
a right of pre-emption in respect of sales in execution of decrees of the
Revenue Courts. So far therefore the dictum of the learned Judges is entire-
ly in favour of my view, and the judgment shows that thev refrained from
actually ruling it, because they were of opinion that the Jphrase "a patti
of a mahal " as it occurs in s. 188 means only an entire patti and not a
part only of a patti of a mahal.

[237] This leads me to the second point as to the interpretation of
8. 188, for upon the strength of the ruling which I have first cited, it has
been argued that since the share of Lala Singh sold by auction on the
20bh August 1886 was only 1 biswa 2 biswansis 5 kachwansis in patti
III, and did not constitute the whole patti, no right of pre-emption under
the section could accrue either in favour of the co-sharers of the same

(1) 1 A. 277.
148



YII] BAIJ NATH V. SITAL SINGH 13 All. 238

patti, such as Bboja Singh the other plaintiff (appellant in the connected 1890
S. A. No. 998 of 1888) or in favour of the co-sharers of the other pattis, JUNE 21.

such as Sital Singh, plaintiff-respondent in this appeal. In' order to deal

with this contention it is necessary, before deciding whether I am prepared APPEL-
to accept the ruling cited, to determine the exact meaning of the word LATE
patti as it occurs in s. 188 of the Revenue Act (XIX of 1873). CIVIL.

Now it is no doubt a somewhat regrettable circumstance that that -
enactment, whilst defining the word " mahal " in s. 3, omits to define the 13 A. 221-
word " patti," which, as will presently appear, is most important" for the 11 A.W.N.
purposes of this case. Nor does the Rent Act (XII of 1881) define the (1891) 88.
term, and the omission is all the more regrettable because the word does not
belong to the language in which these two enactments have been framed.
It must therefore be taken that the Legislature intended to leave the
word to its natural signification in Hindustani, to which language it
belongs and to be understood in the sense in which it was understood
before these two enactments were passed.

This baing so, it is necessary to consider the history of the word as
a term of the land revenue system. Mr. Justice Field in his learned
Introduction to the Bengal Regulations (p. 48) gives an account of the
meaning and use of the word, He says : " The village system as
previously described was in existence in the Upper Provinces when they
came under our dominion. Under that system the proprietors or village
zamindars were in general so numerous a body that a settlement with
them all would have been highly inconvenient. We therefore continued a
practice which existed before our time of selecting one amongst the sharers
whose name was entered in the public accounts as the person responsible for
the [238] collection and payment of the revenue. The proprietor who is
thus a party in his own name to the contract with Government for the
payment of the revenue is called the sadar malguzar or lambardar, while the
co-sharers or proprietors who are not parties in their own names are called
puttidars. " The learned author then in a foot-note explains the meaning
of the term. " Putti is a share, one of the many shares into which the
village has been split by the operation of the laws of inheritance, &c.
Pattidar means any holder of a share, but has in practice been limited as
above. In a mukammal, or perfect pattidari tenure the lands are heid in
severalty by the proprietors who are all jointly responsible for the revenue.
In a namukammal or imperfect pattidari tenure, part of the land is held in
common, and the profits of this go first to meet the revenue and the
remaining part is held in severalty. When one of the co-sharers fails to .
pay his quota the others have to make it good."

This explanation is inconsistent with the definition of the phrase
" pattidari estate " in s. 2 of Act I of 1841, which runs as follows : " A
pattidari estate in this Act is held to be an estate which consist of two
or more separate portions or pattis, or of which there may be proprietors
possessed of separate properties and holding direct of the Government but
not parties in their own names to the contract with the Government for
payment of the public revenue. The proprietor who is a party in his own
name is called a lambardar, and the proprietor who is not a party in the
own name is called a Pattidar."

This section as relating to the tenures in these provinces is best
explained in the authorized Directions for Settlement Officers (p. 50) pub-
lished by the authority of the Local Government in 1858. The work
says: " Pattidari tenures are those in which the lands are divided and
held in severalty by the different proprietors each of such persons

149



13 All. 239



INDIAN DECISIONS, NEW SERIES



[Yol.



1890 managing bis own lands, and paying his fixed share of the Government
JUNE 21, revenue, the whole being jointly responsible in the event of any one
sharer being unable to fulfil his engagements. Imperfect pattidari
APPEL- tenures are those in which part of the land is [239J held in common
LATE and part severnlty ; the profits from the land in common being
CIVIL nrs fc appropriated to payment of the Government Eevenue and the
village expenses, and the overplus being distributed or the deficiency made
18 A, 224= U p j according to a (rate or baehh) on the several holdings."
11 A.W.N. In the present case ifc is .admitted that the tenure of the village in which

(1891) 68. the share of Lala Singh sold is situate is an imperfect pattidari and that he
was therefore a pattidar. The word occurs in s. 10 of Regulation XXVII
of 1795, and it is used there in its natural sense as a convertible term with
the English word " sharer " employed with reference to a sharer in a patti-
dari mahal. There being nothing to the contrary in the Act itself , or else-
where, I hold that a broad and general meaning consistent and co-extensive
with its meaning in the Hindustani language should be assigned to the
word " patti " as it occurs in s. 188 of the Eevenue Act, and that " patti "
must be taken to mean the share of pattidar. This interpretation js not
inconsistent with the definition of pattidar in s. 2 of Act I of 1841, of
which enactment s. 4 provided the right of pre-emption in respect
of auction-sale or any patti) in favour of any pattidar or other member
of the co-parcenary, not being himself in arrear." The manner in
which this provision is understood by the revenue authorities in con-
nection with pre-emption is described in the authoritative " Directions
for Revenue Officers " (at p. 249) where it says : In co-parcenary estates
a right of pre-emption generally exists on the part of such co-parcener
in the event of the sale of a share. Provision is made for the enforcement
of this right by s. 4, Act I of 1841, on the occasion of the sale of any patti
by public auction for arrears of revenue, and by the 8th rule promulgated
by the Court of Sudder Dewanny Adawlut, under s. 11, Act IV of 1846,
on the occasion of the sale of the right and interests of a co-parcener in
satisfaction of. a decree of Court."

But it is contended that the word "patti" can never mean the share
of a pattidar, because in clauses (d) and (c) of s. 150 of the Land Revenue
Act (XIX of 1873), as also in ss. 154 and 157, [240] the words "patti "
and "share" are used as indicating a marked distinction between them,
and that that distinction is all the more apparent when it is observed that
in clauses (/) and (g) of s. 150 and the corresponding ss. 158 and 166 the
word "patti " only occurs to the exclusion of the word "share," in respect
of the power of annulment of the settlement and sale of the patti in respect
of which the arrear is due. The distinction is no doubt noticeable, but the
context of the clauses .above-mentioned shows that the distinction may
have been intended only to differentiate between the share of a zamindari
estate and a patti which is a portion of a pattidari estate. The distinction
might refer to the nature of the tenure, that is to the difference between
zamindari estates and pattidari estates, and I do not think it need neces-
sarily be understood to mean that the holding of a pattidar, who by
reason of the very nature of the tenure holds his land separately, is not a
patti, though speaking literally the holding is a share of the mahal in which
it is situate. But it ia further contended that a sale of a share of a patti
never takes place for arrears of Government revenue. This contention
is based upon drawing a hard and fast distinction between the meaning of
the word "patti " and "share" which, as I have explained, are literally
and virtually convertible terms for all practical purposes where pattidari



YII]



BAIJ NATH V. 8ITAL SINGH



13 All. 242



estates are concerned, and there is no reason shown why, for purposes
of pre-emption, the rules which apply to the sale of the one should not
apply to the sale of the other. Moreover, whilst it is true that as a
matter of practice and convenience revenue authorities do not ordi-
narily sell the share of a pattidar by itself by the summary executive
process for recovery of revenue, it is an ordinary occurrence that such
a hare is, as a matter of fact, brought to sale in execution of a revenue
Court's decree, and Messrs. Crosthwaite and Smeaton, in their note on
8. 166 of the Eevenue Act, says that this takes place in nine cases
out of ten. We know that this responsibility for payment of revenue
by co-parcenary paitidars is of a joint character, and arrears due by
any one of them can be recovered by sale of the shares of all. In
view of this circumstance when a pattidar makes default in payment
of his quota of the revenue his co-pattidars pay up his quota of [241]
revenue, and then sue him in the Revenue Court under clause (k) of
s. 93 of the Bent Act which provides for " suits by recorded co-sharers to
recover from a recorded co- sharer who defaults arrears of Government
revenue paid by them on his account." Decrees passed in such suits by
the Revenue Court are executed by bringing to sale only the share of the
defaulting pattidar, for it is clear that the shares of the other pattidars
would not be liable to sale under such decrees. Such sales take place
under s. 177 of the Rent Act, arid there seems no reason in principle why
a right of pre-emption should not accrue to the non-defaulting pattidars.
The right of pre-emption is in its very essence a reciprocal right, avail-
able to such co-parcenary pattidars in respect of the share or patti of
the other, and its object is to exclude strangers from the co-parcenary
body. Now, applying this principle to the present case, it must be
admitted that the pattidar Lala Singh whose share was sold could
have exercised pre-emption by reason of his pattidari right, if the other
pattis were sold ; and it would be infringing the essential principle
of pre-emption reciprocity if it were to be held that when his share is
sold, as it was on the 20bh August, 1886, the other pattidars would have
no right of pre-emption in their turn. I think we are not driven to any
such interpretation of s. 188 of the Revenue Act, and indeed, in my opinion,
we should be defeating the policy of the statute as to the right of pre-
emption if we adopt any interpretation which would have such an effect.
The whole policy and object of the right of pre-emption is to prevent the
intrusion of strangers in co-parcenary villages such as pattidari estates,
and since it is conceded on all hands that the sale of an entire patti would
give the right of pre-emption to the owners of other pattis, it seems to me
to follow a fortiori that the sale of the lands of a GO- pattidar should entitle
his co-pattidars in the same patti to exercise pre-emption for the purpose
of including strangers from that patti,

When I say that any interpretation other than that which I
have adopted of the word " patti " as it occurs in s. 188 of the Reve-
nue Act, would defeat the policy of the right of pre-emption itself
[242] aa indicated by that section, I must not be understood to mean that
such a result might not have followed if the word had been clearly defined
in the statute itself, or indeed if any clear definition of it were capable of
being gathered from the statute. Nor should I be taken to hold that,
even if a precise definition of the word were to be found in the statute, ifc
should not be interpreted in other parts of the statute in the same sense
as it should be interpreted in s. 188. I have said enough to show that
whilst the word patti did bear an intelligible and definite meaning under

151



1890

JUNE 21.

APPEL-
LATE

ClTIL.

13 A. 224
11 A.W.N.

(1891) 68.



13 All. 243



INDIAN DECISION S, NEW SERIES



[Yol



1890 Act I of 1845, s. 2 and therefore also in 8. 4 of thut enactment, the

JUNE 21. Legislature has chosen to leave it undefined in passing the present

Revenue Act. I confess, speaking for myself, that I have exceptional

APPBL- difficulty in understanding this word of my own language in a sense

LATE different from what it would have free of doubt, had it not been appro-

ClVlL, priated by the Legislature in passing a law such as the Revenue Act. In

so appropriating the word it might have been expected that the mere

ISA. 221 a f ac {j o f jjjg being a word alien to the English tongue, in which the

H A.W.N. enactment was framed, rendered it necessary that it should be speci-

(1891) 68, fically defined, so as to make it impossible for those whose duty it is to

interpret the statute to have any doubt as to the meaning it bears in any

one point of the enactment or another.

But, whilst saying this, I cannot help feeling that the interpretation
which I have placed on the word patti as meaning the share of & pattidar,
whether he owns a whole patti or nob, is an interpretation which cannot
be adopted in exactly the aamo broad sense in some parts of s. 150 of the
Revenue Act as in s. 188 of the same enactment. It seems to me clear,
for the reasons stated by Messrs. Crosthwaite and Smeaton in their
edition of the Revenue Act at page 167 that the word patti as it occurs in
clause (/] of s. 150 with reference to annulment of the settlement, and as ifc
occurs in clause (g) with reference to sale of such patti under conditions
such as s. 166 requires must necessarily mean the whole patti, that is to
say, a proportionate share of the mahal with reference to the assessment of
of revenue. This, I think, may be conceded, because the word has
not been used sufficiently carefully in the enactment to make [243] it bear
only one and the same rigid, definite and precise meaning throughout the
Act. The exigencies of the rules as to annulment of the settlement or sale
in arrears of revenue require the limited interpretation of the word patti as
meaning the whole patti ; the exigencies of the right of pre-emption require
that the same word in s. 188 should be broadly interpreated as meaning the
share of a pattidar. There is no inconsistency in thus interpreting the
word patti in a limited sense in one part of the statute and in a broad
sense in another part of the same enactment, as I will presently explain.
It is undoubtedly a sound rule of interpreting statutes that words
must be understood in their ordinary and natural meaning unless there is
clear reason to the contrary. Patti is a Hindustani word, and in that
language it means a share in a pattidari estate. For example, where there
are five shares the share of each is a patti and each sharer is a pattidar. If
the Government dealing with the settlement of revenue, chooses to deal
with all the five in one, engagement, that engagement will not, in the
absence of express words to that effect alter the meaning of the word
patti or pattidar. The fact of the joint engagement of revenue may
regulate the incidents of the engagements, for example thab the engagement
cannot be annulled with one pattidar unless the whole engagement is an-
nulled. But this would not alter the fact that patti means the share of



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 24 of 155)