Ray, C.J.
1. This is a plaintiffs appeal in a suit for partition of plot No. 763, Khata No. 360 bearing an area 190 in the town of Cuttack. The plaintiff claims eight annas interest by virtue of his purchase. The Khasmahal is the landlord and the interest of the tenant is shown as Patadari with an annual rent payable. The terms and conditions of the tenancy are incorporated in periodical leases and kabuliyats which are renewed from time to time. In the Khatian papers, Chowdhuri Ramahari Das and Chowdhury Jayahari Das and several other Chowdhuries (a)) members of Bhingarpur Chowdhury family) stand recorded. It is not controverted that in partition Suit No. 69 of 1924 of the Court of the Subordinate Judge of Cuttack, the lands, in dispute, were allotted to the shares of Ohowdhury Bamahari and Chowdhury Jayahari, each having eight annas share therein, Jaihari's interest was sold in execution of a money decree in the Court of the Second Munsif of Outtack in Execution Case No. 991/36 and it was purchased on 17th March 1937 by one K.C. Mohanty (vide EX. 3). The said Krishna Chandra Mohanty sold his purchased right to the plaintiff on 28th August 1939. The plaintiff got himself substituted in the place of K.C. Mohanty in the Execution Court in order to get a delivery of possession. Eventually, he got it on 13th October 1539, the plaintiff has got himself recorded in the mutation papers maintained by the Khasmahal on 13th May 1940. This narration of events will make it clear that as between himself and the Khasmahal (landlord), he has completed his title and has got it acknowledged.
2. In the meantime, however, the entire lands have been sold in execution of a certificate debt of arrear of rent due in respect of the lands and defendant 3 has become the auction-purchaser on 15th March 1940 (vide Ex. C. sale certificate). Defendants 1 and 2 have purchased (we do not know when) the remaining share of Ramhari by appropriate transfer.
3. The certificate proceedings were started with the filling of a certificate on 22nd September 1938 for realisation of the Khasmahal rent due in respect of the tenancy as against the entire body of the recorded tenants, the members of Bhingarpur Chowdhury family including Chowdhury Bamahari Daa and Chowdhury Jaihari Das who, it is said, got the entire lands in their share in partition suit, already referred to. Notice was taken out against the certificate debtor under Section 7, Bihar and Orissa Public Demands Recovery Act, 1911. It was served on all except certificate debtors Nos. 1, 12, 18 and 20, who were reported dead, on 1st November 1938.
The certificate officer directed notice under Section 52, Public Demands Recovery Act, to be issued. That section prescribes the procedure that on the death of a certificate debtor, a notice should be served under Section 62, and that being done, any further notice under Section 7 is non-required. The latter part of Section 62(i) proceeds to say :
'52 (1). ........ and the provisionsof this Act shall apply ..... as if such notice warea notice under Section 7.'
4. It appears from the order sheet of the certificate officer dated 18th January 1939 that notice under Section 52 was duly served, no objection filed and distress processes for attachment of movables of the certificate debtor were issued to the certificate officer, Puri, in which district the certificate debtors usually used to reside, returnable by 28th January 1939. The proceeding was adjourned on several dates till the certificate officer of Puri, in his letter No. 8783 dated 31st July 1939 stated that the distress warrant was returned unexecuted as the certificate debtor did not allow the peon to attach the movables on the ground that the property under certificate had long been sold. Thereupon, the certificate officer directed the Requisitioning Officer to supply property list. In usual course the Requisitioning Officer supplied the list of the properties for the purpose of sale. Thereafter, notice under Rule 25 of Schedule 2 was directed to be issued. Sale proclamation was served on some of the certificate debtors and on the legal representatives of certain others who had died in the meantime and whose legal representatives had not been substituted in the manner prescribed under Section 62, Public Demands Recovery Act, but was never served on one Brajabandhu Das who was reported to have left for Satyabadi P. 8. and whose actual address was not supplied. On a date subsequent thereto, fresh notice under Rule 25 was issued through Khasmahal and this notice was reported to have been served on 16th January 1940. About the circumstance that some of the certificate debtors' legal representatives were not substituted in the record in the manner provided by Section 52, Mr. De contended that as the death of some of them occurred after service of Section 7 notice, substitution was not vitally necessary and their legal representatives shall be deemed for all practical purposes to have been represented by those already on record. The simple answer to this is that this contention is against Section 52. The section opens with the words 'where a certificate debtor dies before the certificate has been fully satisfied.' Under the circumstances, the need for substitution is emphasised under the procedure even if they had died sub-sequent to the service of Section 7 notice. A question naturally arises whether the said representatives shall be taken to have been represented by the others already on record. It is not that the principle of representation does not apply to certificate proceedings. On the authority of the case of Kameswar Singh v. Ishwari Prasad Singh, A.I.R. (27) 1940 pat. 692 : (189 I. C. 114), it can be predicated that the doctrine of representation which obtains in the case of proceedings of rent suits and rent decree executions also apply to certificate proceedings. In order to hold that one represents another, some relationship between them must be established which will create a right to represent and right to be represented. This may happen when there is a joint family to whom the tenancy belongs and the manager of the family is on record or this may also happen if several tenants while having common ownership and possession allow themselves to be represented before the landlord in respect of the holding by only some of them. Neither of these conditions is present here. Since 1926, that is, the year of partition suit, already referred to, the family is separate, and it is said that these properties fell to the share of Jaihari and Ramhari. Under the circumstances, by family relationship it cannot be said that either Jaihari or Ramhari or other members of the family would represent the remainder in respect of these properties. This partition however, was not brought to the notice of the landlord (Khasmahal) not recognised by him. Under the circumstances, none but the recorded tenants would, represent the holding in the landlord's dealings with it including the suits or proceedings for recovery of arrears of rent. It is nowhere submitted in the Courts below that on the death of the certificate debtors their legal representatives allowed themselves by any conduct of theirs to be represented by others who were surviving. Under the circumstances, the principle of representation cannot be held to have applied to this case. The result is that the disputed properties were sold not in presence of the persons who represented the holding in relation to the landlord. I shall discuss its bearing on the question at issue presently.
5. After the sale was completed, the plaintiff filed an application under Section 39 of the Act (B. & O. P. D. Recovery) for setting aside the sale on the ground of irregularity employed in the conduct of the sate and consequential injury flowing therefrom. The Court, in his order dealing with the merits of that application, came to a certain findings which, in my judgment, ought to have vitiated the sale. He came to the finding that it had not been established before him that Section 7 notice had, in fact, been served. He ruled out this irregularity (to use his own words)--though in my view non-service-of such notice is an irregularity--holding that this was not material in a proceeding under Section 29, Public Demands Recovery Act. He also came to the finding that the property had been sold for very low price hut he justified it saying that the certificate debtors had no saleable interest in the property at the time of the sale and that it may be the reason for the low price. However, he ultimately rejected the petition and so did the appellate Court. The auction-purchaser got delivery of possession through Court. The plaintiff was then constrained to institute the suit. The contention that has been very vigorously put by Mr. De, the learned counsel for the defendants respondents, is that the earlier purchase of the plaintiff will not avail inasmuch as this is a case governed by Section 26 (3), Public Demands Recovery Act and the holding as such, passed to defendant 3 who purchased at an auction sale held in execution o a decree for rent due in respect of the holding in dispute. This contention, at the first instance, seems to be very attractive. I shall demonstrate that it is unsound. Sub-section (3) of Section 26 reads;
'Notwithstanding anything contained in Sub-section (1) in areas in which Chap. 14, Bengal Tenancy Act, 1885, or Chap. 16, Orissa Tenancy Act, 1913, is in force, where a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof, the tenure or holding shall, subject to the provisions of Section 22 and Section 26 of the said Acts, respectively, pass to the purohaser subject to the interests defined in the said chapters as protected interests, but with power to annul the interests defined in the said chapters as incumbranees.'
6. Bihar and Orissa Public Demands Recovery Act is of the year 1914. The Orissa Tenancy Act is of the year 1913. Like all other Tenancy Acts, it has provided that rents due in respect of certain specified tenancies and holdings (as enumerated in Section 74, O. T. Act) constitute a first charge on them. Section 212, Orissa Tenancy Act, provides that the tenancy or holding sold in execution of a decree for recovery of rent due in respect thereof passes to the purchaser free of all incumbrauces but subject to protected interests and some registered incumbrances defined and specified in that behalf. The section, before passage of the Public Demands Recovery Act, stood without the amendments later introduced to wit, S, 312 (1) (c). The amendments were brought about through Section 69, Public Demands Recovery Act (Bihar and Orissa) in order to bring certain provisions in both the Acts into accord with each other. Before this amendment in Section 212, however, chap. 15 in its preamended form found place in the Orissa Tenancy Act. This chapter dealt with and was headed as 'Summary procedure for the recovery of rents under the Bengal Public Demands Recovery Act, 1895.' According tothis, Provincial Government could empower the landlord in whose estate record of rights had been published, to send requisition for recovery of arrears of rent by summary certificate procedure to the certificate officer who, after making certain preliminary enquiries, would sign and issue a certificate. But for these amendments in 8. 212, and but for Sub-section (3), Public Demands Recovery Act, any execution sale held in enforcement of the certificate for rent should convey merely the right, title and interest of the certificate debtor at the time even though the properties be specified as the subject of sale. While according to Section 212, Orissa Tenancy Act, in its pre-amendment state, the sole landlord or the entire body of the landlords or even the co-sharer-landlord, who frames his suit for rent in a specified manner, can obtain rent decree in execution whereof the holding or the tenancy would pass. This sort of sale conveying the holding or tenure is of much greater efficacy foe purposes of speedy and sure realisation of rent than the sale in a certificate proceeding of the right, title and interest of the tenant. In the former case, unauthorised alienations, mortgages and other kinds of incumbrances will not hold good against the title of the purchaser while in the latter, the purchaser may purchase shadowy nothing besides endless litigations (sic). In order to remove this anomaly, Sub-section (3) of Section 26 as well as the aforesaid amendments in the text of Section 212 and similar amendments both of the Bengal Tenancy Act and Chhota Nagpur Tenancy Acts were brought in Section 69, Bihar and Orissa Public Demands Recovery Act reads:
'69. Chapter 13-A and Sections 158-B, 167, 171 and 179, Bengal Tenancy Act, 1885, Chap. 15 and Sections 212, 221, 225 and 226, Orissa Tenancy Act, 1913, and Sections 244 and 248, Chhota Nagpur Tenancy Aot, 1908, are amended in the manner and to the extent shown in Schedule 3,'
And in Schedule 3, as ordained by this section, the amendments of Section 212 have been mentioned.
7. Mr. De's contention is that Sub-section (3) of Section 26 was introduced in order to give benefit of first charge to all landlords irrespective of the tenancies being agricultural or otherwise and being governed or not by the Orissa Tenancy Act. He would, in Other words, contend that Sub-section (3) of Section 26 would apply to homestead and other tenancies which are governed by Transfer of Property Act. It is, no doubt, true that some homestead tenancies like the chandano holdings and agriculturalists homesteads have been brought into the purview of Orissa Tenancy Act. This, one of many other innovations in the Tenancy Act, has effected some improvement upon the Bengal Tenancy Act and Act X [10] of 1859 which were the laws of landlord and tenant governing formerly the agrarian relationshipsin Orissa. The language of Section 26 (3) considered in the light of the historical coincidence, will make it plain that it will operate in cases of tenancies to which Section 212 would apply. On the strength of the Patna decision, already quoted, Mr. De wanted to argue relying upon an observation not material for the purpose of that case of Wort J., that Sub-section (3) of Section 26 applied to all cases, without discrimination, occurring in certain areas or districts in which the section of the Bengal Tenancy Act corresponding to Section 213, Orissa Tenancy Act, was in force. The learned Judge has not amplified the argument nor has he made his meaning otherwise clear. The observation is not apposite to the facts of the present case. The sub-section refers to the area in which Chap. XVI, Orissa Tenancy Act, is in force as its coverage. The word 'area' may be construed in a wider or a narrower sense. I need nob enter into that controversy in case.
8. It is then contended by Mr. De that as Orissa Tenancy Act, as a whole, applies to the town of Cuttack Section 26 (3), independently of Section 212 Orissa Tenancy Act, would apply to the certificate sale of Khasmahal homestead tenancies of the town. In short his contention is that the two sections are mutually exclusive.
9. But there are certain features present in the specified conditions of applicability of the sub-section which propel us to hold that the sub-section cannot have any application to tenancies, which do not come within the purview of 'holdings or tenures' of Orissa Tenancy Act on which Section 212 could operate but for the rent duea in respect thereof being public demands. The genesis of the rate that in rent decree execution sale, a tenure or holding shall pass is that cant due in respect thereof ia the first charge on it. This charge is enforced by obtainment of a rent decree or' or 'certificate' in the manner provided in Chap. XVI of the Orissa Tenancy Act, and only when the landlord elects to proceed against the concerned tenure or holding in strict conformity with the procedure of that chapter. To a Khasmahal homestead tenancy, the provisions of Orissa Tenancy Act do not apply. The rent reserved of such a tenancy has nowhere been declared to be the first charge. In providing that Section 26 (3) would apply in area where 8. 212, Orissa Tenancy Act, is in force, the legislature cannot be predicated to have other meaning but to indicate that the incident of the concerned tenancies shall he same or similar, one of such incident being that the rent payable is the first charge,
10. It should be noted that Section 26 (3), Public Demands Recovery Act, and Section 212, Orissa Tenancy Act, are complementary. Section 219 deals with the scope of sale in execution of certificates issued for recovery of rent on the requisition of a landlord other than the Government under chap, xv of Orissa Tenancy Act, (vide Section 212) while Section 26 (3): Public Demands Recovery Act, deals with certificates issued for recovery of rents of holdings and tenures which are public demands as defined in Section 3 (6) and enumerated in Schedule 1 of the said Act, items 7 and 8. If Section 26 (3) were not there, the remedies for realisation by certificate procedure of rents due in respect of holdings or tenures within the meaning of Orissa Tenancy Act, to the collector, or to the Court of Wards or the Revenue Authorities in charge of or managing on behalf of a private individual, would suffer from inefficacy, as sales held under the Public Demands Recovery Act would pass merely right, title and interest of the judgment-debtor as remedy by suit is not available to them. That the Public Demands Recovery Act consolidates the law relating to recovery of public demand has, in this connection, to be borne in mind.
11. The effect produced in the working of Sub-section (3) of Section 26 is the came as if the certificated rent dues were a first charge on the holding or tenure concerned. This should be contrasted with the provisions of Section 8, Public Demands Recovery Act. According to it, from and after the service of notice of any certificate under Section 7 upon a certificate debtor, the amount due in respect of such certificate shall be ft charge upon such property to which every other charge created subsequently to the service of the said notice shall be postponed. Such property means any immovable property' in the district of any revenue-paying estate borne on the revenue roll of the district or any interest in such property in the district in which the certificate is filed if the Legislature intended that the rent dues of any class of tenancies outside the ambits of the agrarian law of landlord and tenant in the country it should have specifically and clearly provided for it (sic). It would be against the skill and policy of legislative penmanship to incorporate without express words in that behalf provisions that would be liable to be misinterpreted by production of sharp contrast resulting in inconsistency. Every Act should be interpreted in a manner congenial to production of harmony and consistency amongst its various provisions. The sub-section, under interpretation does not aim at either supplementing or adding to the substantive law governing the incidents of Khasmahal tenancies of the kind and the respective rights and liabilities of the Khasmahal (landlord) and its tenants.
12. The circumstances that Section 26 (3) was ushered in contemporaneously with the amendment of chap. xv, Orissa Tenancy Act, cannot be slightly passed over. By the amendment, the words 'other than Government' were inserted after the words 'any landlord' in Section 211 of Chap. XV, Orissa Tenancy Act. This detraction from the more efficacious remedy for realisation of rents of holdings and tenures of which the Government was the landlord, effected by the amendment, was made good by addition of Sub-section (3) to Section 26, Public Demands Recovery Act.
13. I shall now advert to certain concepts inherent in the sub-section which are fully irreconcilable With the incidents of Khasmahal homestead tenancies. The sub-section discriminates between holding and tenure. This discrimination is compatible only with, the classification of the landed interest of the tenantry in the Orissa Tenancy Act, The classification in Kbasmahal tenancies are patadari. (lessee), Dar-patadari (sub lessee) and Dar Dar patadari (sub-lessee). Conception of a tenure is foreign to the hierarchy of tenancies with Khasmahal as the supreme landlord of non-agricultural landed interests.
14. Next, the sub-section makes the sale subject to the provisions of Section 26, Orissa Tenancy Act. The section, broadly speaking, deals with merger of occupancy right when acquired by proprietor and matters analogous thereto. The section textually is inapplicable to the tenancies with which we are concerned in this case. Such tenants are, by the very term of their induction, liable to ejectment at the option of the proprietor (Kbasmahal) a liability inconsistent with acquisition of occupancy right, Without such acquisition application of Section 26, Orissa Tenancy Act is inconceivable.
15. The section further provides that the sale shall be subject to protected interests, registered and notified incumbrances as defined in the Orissa Tenancy Act. These are fundamentally interests or incumbrances carved out or created in respect of either occupancy holdings or tenures within the meaning of the Orissa Tenancy Act. As such, tbey are incompatible with the incidents of town Khasmahal tenancies.
16. As I have already indicated the entire body of recorded tenants were not represented in the certificate proceedings consummating in the sale and without such representation it would amount to revolutioning the fundamental idea that no tenancy or holding passes without the [entire body of the recorded tenants being represented in the sale proceedings.
17. In these circumstances, I find it difficult to accede to the contention advanced by Mr.De. The defendants, therefore purchased merely right, title and interest of the certificate debtors at the time of sale. As they had no such at the time, the plaintiff's earlier purchase should provail.
18. In the result, the appeal is allowed, the decision of the learned Court of Appeal below 19 reversed and the suit is decreed with costs throughout.
Jagunnadhadas, J.
19. I agree.