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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 83 of 155)
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the Commissioner of the Division, in cases where the annual revenue
payable in respect of such share or patti does not exceed fifty rupees, and
in other cases with the previous sanction of the Board, transfer such share
or patti fo'r a term not exceeding 15 years from the first day of July next
after the date of the sanction, to any or all of the other oo-sharers, on
condition of their paying such arrear and on such terms as the
Commissioner or Board (as the case may be) in each case may think

fit A transfer under this section shall not affect the

joint and several liability of the co-sharera of the mahal in which it is
enforced."

Section 166 enacts so far as is material " when an arrear of land
revenue has become due, and the Collector of the district is of opinion
that the other processes hereinbefore provided are not sufficient for the
recovery of such arrear, he may, in addition to, or instead of, all or any of
such other processes, and subject to the provision hereinafter contained,
and with the previous sanction of the Board, sell by auction the patti or
mahal in respect of which such arrear is due. " The proviso to 166 does
not affect the question we have to consider. Section 167 enacts " land

KB



1892

JUNE 29,

FULL
BENCH,

14 A, 273

(F.B.)-
12 A.W.N.
(1892) 117,



1* All. 283



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

JUNE 29.

FULL
BENCH.

11 A. 273

F.B.) =
12A.W.N.
(1893) 117,



sold under the last preceding section shall be sold free of all incumbrances,
and all grants and contracts previously made by any person other than
the purchaser in respect of such land shall become void as against tht
purchaser at the auction sale. Nothing in the former part of this section
applies (a) in districts or portions of districts permanently settled,
to farms granted in good faith at fair rents, and for specified
areas, by a former proprietor for terms not execeeding 20 years,
[283] under written leases duly registered ; (b) in all districts, to lands
hell under bona fide leases at fair rents, temporary or perpetual, for th
erection of dwelling-houses, or manufactories, or for mines, gardens,
tanks, canals, places of worship, burying-grounds, such lands continuing
to be used for the purposes specified in such leases.

Section 168 enacts that in the events therein mentioned a defaulter's
interests in any other mahal, may be sold, " 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 him in good
faith shall be rendered invalid by such proceedings. " Section 173 enacts
" if the defaulter pay the arrear in respect of which the land is to be
sold at any time before the day fixed for the sale, to the person appointed
under section 147 to receive payment of the land-revenue assessed on
such land, or to the Collector of the district, or the Assistant Collector
in charge of the Sub-division of the district in which the land is situate
the sale shall be stayed."

It is to be observed that not only is the patti or mahal in respect of
which arrears of land-revenue remain unpaid liable to be sold for the
recovery of such arrears, but that every person who is, under section 146
or section 148, responsible to Government for the land-revenue so in arrear,
is a defaulter, and may be proceeded against as such, although be may
have paid to the Government what represented as between him and his
co-sharers in the patti or mahal his quota or share of the land-revenue, the
liability for the payment of the land-revenue being joint and several, and
those being the terms upon which the co-sharers hold the patti or tha
mahal.

There are, besides the processes for the recovery by the Government
of arrears of laud-revenue provided by the sections from which I have
quoted, other processeslprovided by Chapter V by which the Government
may recover arrears of land-revenue.

Chapter V of Act No. XIX of 1873, which enacts what are the liabili-
ties of proprietors and co-sharers and how the land-[28$]revenue may
be collected and arrears of land-revenue may be recovered, does not
enact that a co-sharer or lambardar who pays the particular quota of land-
revenue of his co-defaulter shall have any lien on his co-defaulter's share
in respect of such payment, except in the case and in the manner specified
in section 157, the manner specified being a transfer of the co-defaulter's
share for a period not exceeding 15 years by the Collector with the sanc-
tion of the Commissioner or the Board of Revenue, as the case may be,
to any or all the other co-sharers on condition, amongst possibly others, of
their paying the arrear. The Legislature, if it had seen fit, might hava
enacted in Act No. XIX of 1873 that a lambardar or a co-sharer, on
payment of an arrear of land-revenue, should have a charge on the share
of the co-sharer who was the primary defaulter, but it has not done so.
If the Legislature intended that a lambardar or a co-sharer who, in order
to prevent the patti or mahal being sold under section 166, paid the arrear
of land-revenue should have a charge in respect of such payment



11]



SETH CHITOK MAL V. SHIB LAL



14 All. 286



fehe appropriate place to have inserted words which would have given effect
to such an intention would have been in section 173 ; but neither in that
teotion, nor elsewhere in Act No. XIX of 1873, is any such intention
expressed, or any words used from which such an intention could be
inferred.

I have been unable to find anything in the Indian Contract Act,
1872, (Act No. IX of 1872) from which I can infer that a lambardar or
oo-Bharer is entitled to a charge in respect of arrears of land-revenue
paid by him.

Section 100 of the Transfer of Property Act, 1882 (Act No IV of
1882), would not apply, unless the property, the subject of this suit, was
" by act of parties or operation of law made security for the payment"
to the plaintiff of the money paid by him in respect of the arrears. No
such " act of parties'" is alleged ; and so far as I can see, the property was
not by operation of law made security for any payment to the plaintiff. If
however, section 100 of the Transfer of Property Act, 1882, does apply and
plaintiff has, within the meaning of that section, a charge on the property in
[285] suit, it is not the charge which he contends for, that is a charge which
would give him priority not only over the decrees on the prior mortgagors
and the certificates of sale, but over those prior mortgages which were made
many years before the arrears of land-revenue which were paid by Shib
Lai accrued due, bat a charge by which be would stand qua his charge in
no higher position than that in which a second mortgagee stands to a first
mortgagee. The rights of a second mortgagee as such against the first
mortgagee are, so far as redemption, foreclosure and sale are concerned,
defined by section 75 of the Trasfer of Property Act, 1882, and are the
same rights as the mortgagor has against the first mortgagee, and no
more. A mortgagor could not as against his mortgagee obtain, except by
legislative enactment or as the result of a contract, a prior charge on, or a
right to sell with priority of title, the mortgaged property in respect of a
discharge by a payment made by the mortgagor of a liability on the pro-
perty which first arose after the making of the mortgage. The principle
of the shield, even if the shield could be used as a weapon of offence, could
not apply in such a case.

The result so far is that I find nothing in Act No. XIX of 1873, the
Indian Contract Act, 1872, or the Transfer of Property Act, 1882, which
suggests that any such charge as is contended for here, has been given by
the Legislature in any of those enactments.

I now propose to show that the Legislature not only before but since
the passing of Act No. XIX of 1873, must have considered that, except by
legislative enactment, no person interested for the protection of bis own
interests as a tenant, a co-sharer or an incumbrancer in having Govern-
ment revenue paid, would by the mere payment of an arrear of the
Government revenue obtain any charge whatever upon lands liable to be
sold by the Government in satisfaction of the arrear. And further I
propose to show, so far at least as these Provinces are concerned, that any
such charge as is contended for by Shib Lai would be at variance with
the policy of the Government as disclosed in its legislative enactments,
and that in these Provinces no means has been provided by which
a lambardar or co-sharer could enforce any such charge if he bad it.

[286] Act No. I of 1845 was an Act for the realization of land-reve-
nue. By sections 20, 27, 28, and 29 of that Act the purchasers at a sale
by the Government for arrears of land-revenue of the estates therein
referred to, acquired those estates with certain exceptions free from all

551



1892

JUNE 29.

FULL

BEKCH.

11 A. 873

(*,B.) =
11 JL.W.N.

(1112) 117.



All. 287



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

JUNE 29.

FULL
BENCH.

14 A. 273

(F.B.) =

12 A.W.N,

(1892) 117.



incumbrances. By section 29 it was enacted " and it is hereby enacted
that excepting co-partners of estates under Butwarrah who may have
saved their shares from sale under sections 33 an.i 34, Eegulation XIX,
1814, any recorded or unrecorded proprietor or co-partner, who may
purchase in his own name or in the name of anot h-r t,he Estate of which
he is proprietor or Co-partner, or who by re-purchase or otherwise may
recover possession of the said estate after it ha* been sold for arrears
under this Act ; and likewise any purchaser of an estate sold for other
arrears or demands than those accruing upon itself, shall by such purchase,
acquire the estate subject to all its in cum bran cet. existing at the time of
sale, and shall not acquire any rights in respect to ryots and under-
tenants which were not possessed by the previous proprietor at
the time of the sale of the said estate." Section 9 of Act No. I
of 1845 was as follows : " And it is hereby enacted, that Collectors
shall, at any time before sunset of the latest day of payment, receive as a
deposit from any part not being a proprietor of the estate in arrear, the
amount of the arrear of revenue due from it, to be carried to the credit of
the said estate at sunset as aforesaid, unless before that time the arrear
shall have been liquidated by a proprietor of the estate. And in caseltheparty
BO depositing, whose money shall have been credited to the estate in the
manner aforesaid, shall be a plaintiff in a suit pending before a Court of
justice for the possession of the same or any part hereof it shall be com-
petent to the Judge of the zilla in which such estate is situated, to order
the said party to be put into temporary possession of the said estate,
subject to the rules in force for taking security in the cases of appellants and
defendants. And if the party depositing whose money shall have been
credited as aforesaid shall prove before a competent Civil Court that the
deposit was made in order to protect an interest of the said party, which
would have been endangered or damaged by the sale of the estate, he shall
[287] be entitled to recover the amount of the deposit with interest, from
the proprietors of the said estate."

"Act No. XI of 1859[isan Act to improve the law relating to sales of
land for arrears of revenue in the Lower Provinces under the Bengal
Presidency." Section 9 of Act No. XI of 1859 is almost in terms similar
to those of section 9 of Act No. I of 1845, except that it contains an
addition in the following words : " And if the party so depositing, whose
money shall have been credited as aforesaid, shall prove before such a
Court that the deposit was necessary, in order to protect any lien he had
on the estate or share or part thereof, the amount so credited shall be
added to the amount of the original lien."

Act No. II of 1864 (Madras) is " an Act to consolidate the laws for
the recovery of arrears of revenue in the Madras Presidency." By section
35 of that Act, when arrears of public revenue are paid by a tenant, he ia
entitled to deduct the amount paid from the rent then or afterwards due
by him to the defaulter ; and the arrears, " if paid by a bona fide mortgagee
or other incumbrancer upon the estate, shall constitute a debt from the
defaulter to him, and shall be a charge upon the land, but shall only take
priority over other charges, according to the date at which the payment
was made."

I have not sufficient information as to the tenures in the Presidency
of Bombay to enable me to refer with any certainty to the provisions of
Act No. V of 1879 (Bombay) ; but it appears from section 136 of that Act
that when land-revenue for which the registered occupant or superior
holder ia primarily responsible to the Government is recovered from a

552



YII]



SETH CHITOB MAL V. SHIB LAL



14 All. 289



co-occupant, co-sharer, inferior holder or person in actual possession of
the land, such co-occupant, co-sharer, inferior holder or person in actual
possession of the land does not obtain a charge, but is entitled to credit
in account with the registered occupant or superior holder or with his
landlord for the amount recovered from him.

I think it appears from Act No. I of 1845, Act No. XI of 1859, and
Act No. XIX of 1873, Act No. II of 1864 (Madras) and, so fur as I under-
stand ifc, from A-v, No. V of 1879 (Bombay), that when [288] it was
intended tLat there should be a charge or lien or any other protection in
respect of a payment made in respect of arrears of land revenue the
charge, lien or protection, as the case might ,be, was specifically given
by legislative enactment.

The lien given in Lower Bengal by section 9 of Act No. XI of 1859,
and that given in Madras by section 35 of Act No. II of 1864 (Madras)
fall far short of the charge contended for here, which is a charge with
priority over all previous mortgages acd incumbrances. Further, the lien
given by section 9 of Act No. XI of 1859 is only given when it is proved
that the payment of the arrear was necessary in order to protect any
already existing lien, and only entitles the party who obtains it to add the
amount paid to the amount of his original lien. The charge given in
Madras by section 35 of -Act No. II of 1864 (Madras) is not given to any
one except a bona fide mortgagee or incumbrancer upon the estate, and
only takes priority over other charges according to the date at which the
payment was made.

That any such charge as is contended for here would be at variance
with the policy of the Government, at any rate as applied to these Provin-
ces, is, I think, apparent from a consideration of sections 150 to 166
inclusive of Act No. XIX of 1873, and of section 171 of Act No. XII of
1881. Sections 150 to 166, inclusive, of Act No. XIX of 1873 show that
it is the policy and intention of the Government that when its processes
for the recovery of arrears of land revenue are put in action it is only when
all the other processes fail that a sale of the immoveable property of the
defaulter shall be resorted to. Section 171 of Act No. XII of 1881 shows
that it is the intention of the Government that a sale of Immoveable
property in execution of a decree of a Court of Eevenue for the payment
of arrears cf rent or Revenue or of money under that Act shall not be
resorted to unless satisfaction of the judgment cannot be obtained by execu-
tion against the person or moveable property of the debtor. Sections 322
to 324 inclusive of the Cede of Civil Procedure afford further evidence of
what the policy of the Government is. If the charge claimed in this case
exists and can be [289] enforced, a lambardar or recorded co-sharer would
on payment of an arrear of land-revenue on the day after it became due
obtain a charge on immoveable property which he could proceed to
enforce by obtaining a decree for sale of the immoveable property, and
selling the immoveable property in execution of that decree, and would
thus frustrate the obvious intention of the Government as disclosed in
legislation that all other means shall be resorted to before an owner shall
be deprived by sale of his holding unless he has by contract specifically
mortgaged or charged the same with the payment of money and a decree
thereon for sale has been passed.

I now intend to show that even if a lambardar or co-sbarer does on
payment of an arrear of land-revenue obtain by the application of any
principle of equity a charge on the mahal or on any part of it, no means



1892

JUNE 39,

FULL
BENCH.

14 A. 273

(F.B.)-
12 A.W.N.
(1892) 117,



A VII 70



553



14 All. 290 INDIAN DECISIONS, NEW SERIES [Yol.

1892 has been provided by which he can in these Provinces enforce such charge
JUNE 29. by a 8a ' Q under a decree for sale of immoveable property, or obtain a

declaration that he has such a charge or any right to any such charge.
EULL The jurisdiction of Courts in these Provinces to entertain suits is

BENCH, conferred by legitlative enactment or by Regulation. There is no Regu-
lation which applies in this case. If there is a jurisdiction in any Court
11 A. 278 to entertain this suit, assuming that section 13 of the Code of Civil Pro-
(F.B.) cedure does not apply to it, the jurisdiction must be found in the Code
18 A.W.N, of Civil Procedure or in Act No. XII of 1881 (the North- Western Pro-
(1892) 117. vinces Rent Act, 1881). If any section of the Code of Civil Procedure gives
a Civil Court jurisdiction to entertain this suit it is section 11. Section 11,
so far as it is material, is as follows :

" The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature, excepting suits of which their
cognizance is barred by any enactment for the time being in force."

In order to ascertain if the cognizance by a Civil Court of this suit
is barred by any enactment for the time being in force, we must
turn to Act No. XII of 1881. The first paragraph of section [290]
93 of Act No. XII of 1881 is as follows : " Except in the way of appeal,
as hereinafter provided, no Courts other than Courts of Revenue shall
take cognizance of any dispute or matter in which any suit of the nature
mentioned in this section might be brought, and such suit shall be heard
and determined in the said Courts of Revenue in the manner provided in
this Act, and not otherwise." That is as distinct a prohibition as the
Legislature could by any possible use of words have enacted. Not only
does section 93 enact that the Courts of Revenue are to be the Courts of
first instance for all suits of the nature mentioned in the section, but it
prohibits any Court except a Court of Revenue, or a Court of Appeal as
such sitting in Appeal from a Court of Revenue, from taking cognizance
of any dispute or matter in which any such suit might be brought. Clause (g)
of section 93 is as follows : "Suits by lambardars for arrears of
Government revenue, payable through them by the co-sharers whom they
represent, and for village expenses and other dues for which the co-
sbarers may be responsible to the lambardars." Clause (k) of section 93
is as follows : " Suits by recorded co-sharers to recover from a recorded
co-sharer who defaults arrears of revenue paid by them on his account."
It follows that no Court other than a Court of Revenue can as a Court of
first instance take cognizance of a suit of the nature of a suit by a
lambardar for arrears of Government revenue payable through him by the
co-sharers whom he represents, or of a suit of the nature of a suit by a
recorded co-sharer to recover from a recorded co-sharer who defaults
arrears of revenue paid by him on account of such defaulter, or of any
dispute or matter in which a suit of the nature mentioned in clause (gr) or
in clause (k) might be brought.

It cannot be contended that the dispute in this suit is not a dispute
as to the recovery by the plaintiff of moneys paid by him as lambardar for
arrears of Government revenue which were payable through him by the co-
sharers whom he represented. The fact; that the plaintiff seeks in this suit
a decree or declaration that he is entitled to recover such moneys in a
particular way or by a particular process does not make the dispute any the
less a dispute of the nature which I have [291] mentioned, or any less a dis-
pute in which a suit of the nature mentioned in clause (0) might be brought,
although in a suit under clause (g) the plaintiff could not obtain the decree
or declaration which he seeks to obtain in this suit, even if Seth Ghitor

554



YII] SETH CHITOB UAL V, SHIB LAL li All. 292

Mai had been a mortgagee in possession and a co-sharer at the time the 1892
arrears became due and were paid and could have been made a defendant JUNE 21.
to a suit under clause (g). Effect must be given to the words " dispute
or matter " in section 93, as they were obviously inserted in that section 1?ULL
with the object of limiting the jurisdiction of Civil Courts further than that BENCIL
jurisdiction would probably have been limited if the section had not
contained those words, and had run as follows : " Except in the way of ** * 2 "
appeal as hereinafter provided, no Courts other than Courts of Revenue (F.B.)
shall take cognizance of any suit mentioned in this section, and such suit J2 A.W.N.
shall ba heard and determined in the said Courts of Revenue in the ( 189 *) 117>
manner provided in this Act and not otherwise." If section 93 were so
worded, it might be possible to contend successfully that as a suit under
clause (g) is a suit in which a Court of Revenue could not give a decree for
sale, or what is called sometimes an hypothecation decree, the jurisdic-
tion of a Civil Court to entertain and determine this suit is not barred. I
consequently come to the conclusion that section 93 of Act No. XII of
1881 bars the Civil Courts from taking cognisance of this suit and of any
similar suit not authorized by section 181 of that Act to be brought in a
Civil Court.

This suit, as I shall presently show, is not a suit to which section 181
of Act No. XII of 1881 applies. It consequently remains to be seen
whether a Court of Revenue in these Provinces could make a decree for
sale of immoveable property in a suit by a lambardar or a recorded
co-sharer, or could make a declaration that a lambardar or a recorded
co-sharer, had a charge on immoveable property in respect of arrears of
land-revenue paid by him.

It is obvious, from a consideration of Act No. XII of 1881, that
a Court of revenue cannot make a decree ordering the sale of im-
moveable property, or a decree declaring a charge upon' immoveable
property. The whole procedure for executing a decree of a Court of
[292] Revenue negatives the existence of any such jurisdiction in a
Court of Revenue. The sections of Act No. XII of 1881 immediately
dealing with the execution against immoveable property of a decree of a
Court of Revenue for the payment of arrears of revenue or money com-
mence with section 171. The provisions of sections 173, 174, 174-A, 175,
and 176 are entirely at variance with the notion of the decree in execution
being one for sale of immoveable .property. Section 177 shows that
where immoveable property is sold, it is sold not by force of a decree for
sale, but under an order of the Board of Revenue in aid of a decree for
money. If the Board of Revenue orders the property to be sold, section
177 enacts that " the sale shall be made under the rules in force for the
sale of land for arrears of land-revenue, but without prejudice to the
incumbrances (if any) to which such property may be subject." No
words could show more conclusively than those which I have just quoted
that a decree under clause (g) or under clause (k) of section 93 could not
declare a priority of charge, or any charge, or create a right of charge, or
operate as a charge. Beyond all doubt, as it appears to me, those words
show that the charge which the Government has for arrears of land-
revenue does not pass to the lambardar or co-sharer who pays the arrears.
Section 178 enables a third party to appear before the Collector of the Dis-
trict or Assistant Collector and claim a right or interest to or in any of the
property about to be sold under section 177. Sections 179 and 180 deal
with the adjudication of the Collector or Assistant Collector on a claim
made under section 178. Section 181 enacts " (a) No appeal shall lid

555



14 All. 293



INDIAN DECISIONS, NEW SERIES



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 83 of 155)