Nasim Ali, J.
1. These two appeals are against two decrees of the Subordinate Judge of Hooghly dismissing two suits instituted by the appellants in the First Court of the Subordinate Judge at Hooghly for the re-versal of sales of two Patni Taluks, viz., Lot Rampura and Lot Haripur in the district of Hooghly under the Bengal Patni Taluk Regulations of 1819. The material provisions of the Patni Regulations are these:
Section 8. First - Zamindars, that is, proprietors under direct engagements with the Crown, shall be entitled to apply in the manner following for periodical sales, of any tenures upon which the right of gelling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure.
Second - On the first day of Baisakh, that is, at the commencement of the following year from that of which the rent is due, the zamindar shall present a petition...to the Collector, containing a specification of any balances that may be due to him on account of the expired year, from all or any talukdars or other holders of an interest of the nature described in the preceding clause of this section.
The same shall then be stuck up in some conspicuous part of the cutcherry with a notice that, if the amount claimed be not paid before the first of Jeth following the tenures of the defaulters will on that day be sold by public sale in liquidation.
A similar notice shall be stuck up at the sadar cutcherry of the zamindar himself, and a copy or extract of such part of the notice as may apply to the individual case shall be by him sent to be similarly published at the cutcherry or at the principal town or village upon the land of the defaulter.
The zamindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mufassal shall be served by a single peon, who shall bring back the receipt of the defaulter, or of his manager, for the same, or, in the event of inability to procure this, the signatures of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot.
If it shall appear from the tenor of the receipt or attestation in question that the notice has been published at any time previous to the fifteenth of the month of Baisakh it shall be sufficient warrant for the sale to proceed upon the day appointed.
In case the people of the village should object or refuse to sign their names in attestation, the peon shall go to the cutcherry of the nearest munsif, or if there should be no munsif, to the nearest thana, and there make voluntary oath of the same having been duly published; certificate to which effect shall be signed and sealed by the said officers and delivered to the peon.
Section 10 - A person shall attend on the part of the zamindar, with a particular statement of the payments made up to the day of sale on account of the balance of each advertised lot, together with the receipt for, or certificate of, the notice directed to be published in the mufassal, nor shall any lot be put up to sale until the statement produced shall have been inspected, and the existence of a balance for the year ascertained therefrom, nor until the receipt for the notice shall have been read; the observance of which forms shall be recorded in a separate rubakari to be held upon each lot sold.
Section 13. First - With reference to the injury that may be brought upon the holder of a taluk of the second degree by the operation of the preceding rules, in case the proprietor of the superior tenure purposely withholds the rent due from himself to the zamindar after having realised his own dues from the inferior tenantry, it is deemed necessary to allow such talukdars the means of saving their tenures from the ruin that must attend such a sale; and the following rules have accordingly been enacted for this purpose.
Second - Whenever the tenure of a talukdar of the first degree may be advertised for sale in the manner required by Clauses (2) and (3) of Section 8 of this Regulation, for arrears of rent due to the zamindar, the talukdars of the second degree, or any number of them, shall be entitled to stay the final sale, by paying into Court the amount of balance that may be declared due by the person attending on the part of the zamindar on the day appointed for sale; in like a manner they shall be entitled to lodge money antecedently, for the purpose of eventually answering any demand that may remain due on the day fixed for the sale, and, should the amount lodged be sufficient, the sale shall not proceed, but, after making good to the zamindar the amount of his demand, any excess shall be paid baok to the person or persons who may have lodged it.
Section 14. First - Should the balance claimed by a zemindar on account of the rent of any under-tenure remain unpaid upon the day fixed for the sale of the tenure, the sale shall be made without reserve, in the manner provided for in Sections 9 and 10 of this Regulation; nor shall it be stayed or postponed on any account, unless the amount of the demand be lodged. It shall, however, be competent to any party desirous of contesting the right of the. zemindar to make the sale, whether on the ground of there having been no balance due, or on any other ground, to sue the zemindar for the reversal of the same, and, upon establishing a sufficient plea, to obtain a decree with full costs and damages.
Second. - In cases also in which a talukdar may contest the zamindar's demand of any arrear, as specified in the notice advertised, such talukdar shall be competent to apply for a summary investigation at any time within the period of notice; the zamindar shall then be called upon to furnish his kabuliyat and other proof at the shortest convenient notice, in order that the award may, if possible, be made before the day appointed for sale.
Such award, if so made, will of course regulate the ulterior process; but, if the case be still pending, the lot shall be called up in its turn, notwithstanding the suit, and, if the zemindar or his agent in attendance insist on the demand, the sale shall be made on his responsibility, nor shall it be stayed or the summary suit be allowed to proceed, unless the amount claimed be lodged in cash, or in Government securities, or in currency notes, by the talukdar contesting the demand; and if such deposit be not made, the alleged defaulter will have no remedy but by a regular action for damages and for a reversal of the sale unless he makes an application under Section 14A.
2. The case of the appellants is that the sale of the two patnis is liable to be set aside on the following grounds: (1) that the petitions of the zamindar (respondents) under para. 1 of Clause (2) of Section 8 were not presented to the Collector of the district; (2) that the notices required to be served under paras. 2 and 3 of Clause (2) of Section 8 were essentially defective; (3) that the said notices were not published at the Kutehery of the appellants as required by para. 3 of Clause (2) of Section 8; (4) that the peon who served these notices did not bring back signatures of three substantial persons residing in the neighbourhood in attestation of the notices having been brought and published at the Kutehery of the appellants as required by para. 4 of Clause (2) of Section 8; (5) that the declaration of the peon that the notices were duly published under para. 6 of Clause (2) of Section 8 was not made immediately after the publication of the notices. The facts which have a material bearing on the first ground are these: The petitions of the zamindars under para, 1 of Clause (2) of Section 8 were addressed to the Collector of the Hooghly District. They were received by the Senior Deputy Collector of Hooghly on 17th April 19S9 = 3rd Baisakh 1346 B.S. (1st and 2nd Baisakh being holidays). On that very day the Senior Deputy Collector asked the record keeper to report at once. On 2lst April the Collector of Hooghly issued a notice fixing 15th May 1989 = 1st Jaista 1346 B.S. for sale. On the last mentioned date the patnis were sold.
3. The argument of the appellants in support of the first ground is this : Presentation of the petitions to the Collector under para. 1 of Clause (2) of Section 8 means (1) filing of the petition by the zamindar and (2) receipt of the said petition by the Collector himself. Receipt of the petition is the first act of the Collector preparatory to or connected with the sale under the Patni Regulations, although some of the duties of the Collector of a district can be delegated to the Senior Deputy Collector under Section 8 of Regulation 4 of 1821 and Sections 20 and 21 of Regulation 8 of 1833. The duty of receiving petition presented for sale of patni tenures could not be delegated to the Senior Deputy Collector who is not a Collector within the meaning of section 1 of Bengal Act 8 of 1865. In these cases the petitions of the zamindar for sale were admittedly received not by the Collector himself but by the Senior Deputy Collector. Consequently, there was no valid presentation of the petition to the Collector within the meaning of para. 1 of Section 8 of the Patni Regulations. The patni sales in question are therefore liable to be set aside. Section 8 of the Patni Regulations as originally framed required the zamindar to present a petition 'to the civil Court of the district and a similar one' to the Collector. Section 9 as originally framed contained a provision that the sale should be made by the Registrar or Acting Registrar of the civil Court or in his absence by the person in charge of the office of the Judge or Magistrate of the district within whose jurisdiction lands may be situated.
4. By Section 1 of 1850 the petitions for patni sales were required to be presented only to the Collector and the petitions to the civil Court of the district were dispensed with. By Section 1 of Act 8 of 1865 the Collector was defined as 'including all officers exercising the whole powers of the Collector of a district.' By Section 3 of the said Act 'all acts preparatory to or connected with the sale of patni taluks' which by the Patni Regulations the Judge was required to perform were directed to be performed by the Collector as defined in the said Act. At the time when the Act came 4 into force the civil Court of the district was not required to receive petitions for patni sales. Act 8 of 1865, therefore, did not touch the Collector's power to receive petitions presented to him by the zamindar for the sale of the patnis under the Patni Regulations as originally framed. The Collector, therefore, to whom the zamindar has got to present this petition is not a Collector as defined by Section 1 of Act 8 of 1865 and need not have all the powers of a Collector of a district. It appears from the evidence in this case that the power of the Collector to receive petitions by the zamindar for the sale of patni were delegated to the Senior Deputy Collector who received the petitions of the zamindar in question. It cannot be said, therefore, that the petitions of the zamindar were not presented to the Collector as required by para. 1 of Clause (2) of Section 8 of the Patni Regulations. As regards the second ground the contention of the appellants is this: the notices required to be served under paras. 2 and 3 of Clause (2) of Section 8 were essentially defective inasmuch as (a) the zamindars did not deduct Rupees 3-11-8 from the patni rent of Lot Rampura which they were bound to do according to Clause 14 of the patni lease on account of the acquisition of 1.35 acres of land appertaining to the said patni taluk and (b) the interest claimed on the arrears of rent was charged at the rate of 12 per cent., although under the law they could recover interest only at the rate of 6 per cent. Clause 14 of the patni lease is in these terms:
If any land within the ambit of this patni is acquired by the Government for Railway line or for other purposes, I shall get one-half of the compensation money that will be awarded therefor and you Moharaja shall get the other half and I shall not be competent to make any plea for abatement of rent; and if you Moharaja get any abatement of jama by raising objection you shall grant to me abatement accordingly.
5. The meaning of the words 'by raising objection' in this clause is not very clear. The award of the land acquisition shows that the abatement of revenue to the extent of Rs. 3-11-9 was granted to the zamindar for acquisition of a portion of the land covered by the Patni Lot Rampura. The award, however, does not indicate the date from which the abatement is to take effect. The evidence in this case indicates that at the time when the zamindar filed the petition for sale of patni Lot Rampura they were not aware of the award by which the abatement in the revenue was made. I am, therefore, not in a position to say that the zamindar was bound to grant abatement of patni rent as claimed by the patnidars - appellants. It is not disputed in this case that in the notices the demands included interest on arrears of rent which was charged at the rate of 12 per cent, although the zamindars were entitled to claim interest only at the rate of 6 per cent, in view of the amended provision of Section 67, Ben. Ten. Act. On 12th May 1939, that is, three days before the date fixed for sale the appellants filed petitions before the Collector objecting to the rates of interest charged by the zamindar under para. 1 of Clause (2) of Section 14. They also stated in their petition of objection that the demand of rent for the Patni Lot Eampura was excessive inasmuch as it did not give credit from the arrears of patni rent the sum by which the total revenue of the touzi under which the patni is held was reduced on account of the acquisition of some of the lands of the touzi and the patni under the Land Acquisition Act which they were bound to do under the terms of the patni lease. The Collector thereupon asked both parties to produce necessary papers on 15th May 1939, i.e., the date fixed for the sale. On this last mentioned date the zamindar reduced the rate of interest to 6 per cent, in the accounts of the balance of the two patnis filed under para. 2 of Section 10. The objections of the patnidars relating to the abatement of rent were not pressed before the Collector and the patnis were sold on that date and purchased by the zamindars.
6. The position therefore is that there was an excess demand on account of the rent of Patni Lot Kampura and Patni Lot Haripur respectively in the notices required to be served under paras. 2 and 3 of Clause (2) of Section 8. Clause (2) of Section 14 entitles the patnidars to contest the zamindar's demand of any arrear as specified in the notice under Section 8 before the Collector at any time within the period of notice. If the zamindar asserts this demand as correct the Collector summarily investigates into the matter and if he finds that the claim is excessive he can reduce the original demand by an award before the date fixed for the sale. If the patnidar does not pay the reduced amount before the date fixed for the sale, the zemindar's right and, the Collector's power to proceed with the sale on the date fixed for sale are not affected. The object of specifying the demands in the notices is to give the defaulting patnidar an opportunity for saving the patni by paying within the period of notice the original demand or the demand that is found due by the Collector, Clause (2) of Section 13 lays down that the under, tenants may stay the final sale by paying into Court the amount of balance that may be declared due by the person attending on the part of the zemindars on the day appointed for sale or by lodging money antecedently for the purpose of eventually answering any demand that may remain due on the day fixed for the sale. The contention of the zemindar respondent is this: The amount of excessive interest mentioned in the notices was reduced on the date of the sale by the Collector on the admission of the zemindar. It was not open to the zemindars thereafter to proceed with the sale if the patnidars or the under-tenants had paid the reduced demands immediately before the sale. The defaulting patnidars if they wanted to save their tenure from sale they could have done so by paying immediately before sale the amounts which were declared due before the sale commenced. The under-tenants could have protected their interest similarly. The patnidars of the under-tenants were therefore not at all prejudiced.
7. In Nawab Khaja Ahsanulla Khan Bahadur v. Hurri Churn Mozoomdar ('93) 20 Cal. 86 at pp. 194-95 their Lord-ships of the Judicial Committee approved the following opinion of this Court:
The object of the publication of this notice is to give not only to the defaulting putnidars, but durputnidars, mortgagees, and other encumbrancers, notice of the sale. It may well be, that the putnidar, durputnidar, mortgagees or other encumbrancers would have available, for the purpose of saving the estate from sale, 75 per cent, of the arrears due but not the whole. We are of opinion that if the zemindar chooses to bring into operation the provisions of Clause (3), Section 8, and to get a half year's rent by means of this regulation, he must strictly comply with the conditions laid down in the section. We think that all the requirements in Clause (2) of Section 8 must be imported into Clause (3) of that section mutatis mutandis, and, therefore, we think that the serving of the notice is a condition precedent to the sale being held, and that the notice so served must be a good notice : that is to say, it must be a notice which shall put all parties concerned in saving the tenure from sale in possession of the knowledge of what really they will have to do if they desire to save the tenure, and would be purchasers in possession of information as to the amount they will have to spend if they wish to purchase the property.
8. In this case it was contended before the Judicial Committee on behalf of the zamindars that if the form of the notices was not shown to have prejudiced the patnidars or their interest in any way, the notices cannot be said to be substantially defective. Their Lordships of the Judicial Committee, however, repelled this contention and observed that the question as to whether the patnidars were prejudiced or not was immaterial inasmuch as the defect in the notice arose upon the notice which the zemindar himself gave, that the amount of demand mentioned in the notice was a material and essential part of the notice and could not be dispensed with and that the defect was at the root of the whole proceedings. In view of this decision of the Judicial Committee, it is not open to me to go into the question as to whether in view of the events that had happened in these cases the appellant patnidars or their interests were in any way prejudiced on account of the excessive demands in the notices required to be served under the regulation. I therefore hold that the sales in question are liable to be set aside on account of the fact that amounts in excess of the amounts legally due to the zemindar from the patnidar were demanded in the notices required to be served under the regulations.
9. The photographs [Exs. I and I(2)] and the evidence of D.W. 8 Bhawani Charan Bhattacharjee, who was deputed by the zemindars clearly prove that petitions by the zemindar for sale together with the notices requiring the defaulting patnidars to pay off the arrears of patni rent before the date fixed for sale were affixed on two huts, one in village Chikaranda within Mahal Rampura and another in village Jagamohanpur in Mahal Lot Haripur which were being used as Kutcheris of the defaulting patnidars. The evidence on the side of the defendants in these two suits shows that after affixing the notices the peon did not bring back the receipt of the defaulting proprietors or their managers or signatures of three substantial persons residing in the neighbourhood in attestation of the notices having been brought and published on the spot as required by Section 8 of the Patni Regulations. In these cases, however, the peon made voluntary oath of the notices having been duly published before the nearest Munsif as well as the nearest Thana Officer and brought certificates to that effect signed and sealed by the said officer and delivered to him. Although it has been clearly proved that the notices were duly published at the Kutcheri of the defaulting patnidars the evidence in this case does not show that the mode of proof laid down in paras, 4 and 6 of Clause (2) of Section 8 of the Patni Regulations was strictly followed by the zamindar. The question, therefore, is whether this failure of the zamindar to follow strictly the statutory mode of proof is a sufficient ground for reversing the patni sales. In Sona Beebee v. Lall Chand Chowdhury ('68) 9 W.R. 242 Sir Barnes Peacock said:
The material part of Clause (2), Section 8, Regulation 8 of 1819...is that the notice required to be sent into the Mofussil shall be served. The zemindar is exclusively answerable for the observance of the forma prescribed by that clause. The subsequent part of the section which prescribes that the serving peon shall bring back the receipt of the defaulter, or of his manager, or in the event of his inability to procure it, that he shall obtain that which by the Regulation is substituted for it, is merely directory and if not done, does not vitiate the sale, provided the notice is duly served.
10. In Ram Sabuk Bose v. Monmohini Dossee ('75) 2 I.A. 71 their Lordships of the Judicial Committee agreed with this view of Sir Barnes Peacock. In Maharajah of Burdwan v. Sm. Tara Soondari Debi ('83) 9 Cal. 619 Lord Fitzgerald said:
Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zamindar who institutes the proceeding exclusively responsible for its regularity. Their Lordships do not, however, intend at all to controvert a decision in Sona Beebee v. Lall Chand Chowdhury ('68) 9 W.R. 242, to which their attention was called, of Sir Barnes Peacock when he filled the office of Chief Justice of the High Court of Bengal, to the effect that if the notice itself has been duly published, if it is not a matter of controversy, if the fact was ascertained that it was published, then one would not regard any objection either to the form of the receipt or the absence of the receipt itself. That decision was alluded to in a case before this tribunal in Ram Sabuk Bose v. Monmohini Dossee ('75) 2 I.A. 71 in which their Lordships say they are disposed to agree with the judgment of the High Court confined as it is to oases where there is proof that the notice was duly served. That again, is where there is no controversy as to the fact of the service. It seems to their Lordships that the object of the Regulation was that due service or publication should not be left matter of controversy.
11. In Ram Sabuk Bose v. Monmohini Dossee ('75) 2 I.A. 71 Lord Hobhouse said:
The formalities which the zemindar has to observe and the evidence by which the observance has to be proved are two totally distinct things. Although Sir Branes Peacock decided in Sona Beebee v. Lall Chand Chowdhury ('68) 9 W.R. 242 that if the observance of the requisite formality was distinctly proved it was not necessary to have the mode of proof, which the regulation directs. In Maharajah of Burdwan v. Sm. Tara Soondari Debi ('83) 9 Cal. 619 this committee found that the question whether the requisite formality has been observed depended on conflicting evidence, but that the statutory mode of proof had clearly not been followed, and they held that the decision must go against the zemindar whose business it was to follow the prescribed method. They did not differ from Sir Barnes Peacock nor did they hold that the statutory proof was the only proof that could be given.
12. In view of these decisions of the Judicial Committee, I am of opinion that although the statutory mode of proof relating to the service of the notices at the cutchery of the defaulting patnidar was not strictly followed by the zemindars in these cases the patni sales in question are not liable to be reversed as it has been clearly proved by the other evidence in the case that these notices were duly served. The result, therefore, is that the appeals are allowed, the decrees of the trial Judge dismissing the suits are set aside and the suits are decreed. The putni sales in question are set aside. Parties in these appeals will bear their own costs throughout the litigation.
Pal, J.
13. These two appeals are by the plaintiffs in two suits for setting aside the sales of two patni taluks held under Regulation 8 of 1819. The plaintiffs were the holders of the two distinct patni taluks one in mahal lot Rampara and the other in mahal lot Haripur, under the defendants on the basis of two different kabuliyats executed in 1300 and 1805 B.S. These patni mahals fell into arrears and there were two separate proceedings for sale under Regulation 8 of 1819 for the arrears of rents of 1345 B.S. These were Astam cases Nos. 8/451 and 8/452 of the year 1939-40 in the Hooghly Collectorate. The case No. 8/452 related to the putni mahal lot Rampara of which the sale took place on 15th May 1939. The suit No. 22 of 1939/18 of 1940 and F.A. No. 205 of 1940 relate to this case. F.A. No. 206 of 1940 arises out of the suit No. 23 of 1939/19 of 1940 and relates to the sale of the putni mahal, lot Haripur sold in the case No. 8/451 of 1939/40 of the Hooghly Collectorate on the same date, i.e. on 15th May 1939. The allegations in the plaints that will be relevant for the purposes of the present appeals are contained in paras. 7 to 9 of both the plaints. In para. 9 they alleged that no notice or sale notifications, etc., were at all served in the cutcherry of the Collector or in the Sadar cutcherry of the zamindar or in the cutcherry of the plaintiffs or in the mofussil or in the disputed mahal as provided in Regn. 8 and that all these were deliberately suppressed. They further alleged that the Astam petition in question and the sale held on the basis thereof did not conform to the provisions of Sections 8 and 10 of the Regulation. In para. 7 they alleged that the defendants in their Astam petition inflated the amount of the arrears actually due by claiming improper, excessive and illegal interest and Astam costs. In their written statements the defendants denied these allegations and in para. 16 gave the details as to the service of notices thus:.Application for Astam sale for 1345 B.S. was duly filed in the Collectorate and it duly remained hung up there. A similar notice duly remained hung up in the defendants' Sadar Cutchery also. An officer of the defendants went to Chikaranda Cutcherry and served the Istahar at the Cutcherry Ghur. He served Istahar at the plaintiffs' Sadar Cutchery at Jani and the plaintiffs' officer Rasik Mollah took the two copies of Istahar one relating to the case in respect of Rampara and the other relating to the case in respect of Haripur and granted receipt under his own signature. Then he want to Rampara and effected service. There he (defendant's officer) took signatures of substantial persons, and he took photograph at the time of service and sent postcard to the sub-manager of the defendants from Mofussil and swore two affidavits at Chandipur Thana and Srirampur Munsiff's Court. So, it would be satisfactorily and conclusively proved that notice was served in the Mofussil.
14. As regards the allegations in para. 7 of the plaint, the defendants in para. 2 of their written statements admitted, that in the original claim interest charged was in excess of what was legally recoverable, but that the same was reduced subsequently. They stated:
The Bengal Tenancy Act being amended, the claim of interest was to some extent higher, for which the plaintiffs filed objections in the Collectorate, and these defendants thereupon submitted an account wherein they reduced the amount of interest to a sum which was even less than that claimed as justly due to them on account of interest. Under the Patni Regulation the zemindar is to submit such account at the time of the sale, which is held in accordance therewith. In that account no improper, excessive or illegal interest or Astam cost was claimed. The sale which was held on the basis of the said account is not at all illegal or fraudulent and it is not liable to be set aside in any way.
15. It may be noticed here that the relevant amendment of the Bengal Tenancy Act was by B.C. Act VI of 1938 which came into force on 18th August 1938, long before the petition for sale under Regn. VIII of 1819 was presented. Though not pleaded in the plaint the plaintiffs for the first time at the hearing of the suits urged that the entire sale proceedings were bad, having been initiated by the presentation of the petition for sale under Section 8 (second) of the Regulation, not to the Collector, but to the Senior Deputy Collector. The learned Subordinate Judge held:
(1) That the petition was presented to the Collector within the meaning of the section though it was the hand of the Deputy Collector which received it in the first instance;
(2) That there was no defect in the publication of the petition with a notice in the cutcherry of the Collector.
(3) That the notioe was duly published at the Sadar cutcherry of the defendants (zamindar).
(4) That for reasons of their failure in previous cases on the question of publication of the notice is the mofussil the defendants appeared to have taken extraordinary precautions in the present proceedings; (a) there were diaries recorded by the thana officers of Chanditola thana within the jurisdiction of which the mahals under Bales were situate, posting arrival in and departure from the mahals of the person acting as peon for the purposes of the publication (Ex. D); (b) there were photos (Ex. I to I (3)) taken of different places of Bervice at the time; (ej it was not denied that the peon went to the thana and made reports embodied in the diaries; (d) in the Mahal Bampura there was admittedly a Cutcherry of the defaulter in the Village Chikrandi; the notice was served in the cutcherry at Chikrandi; (e) in the Mahal Haripur, there admittedly is a cutcherry of the plaintiffs at Jagamohanpur; the notice was served in the cutcherry at Jagamohanpur; (f) considering the extraordinary precaution that was taken by the defendants in the matter of the service of the process, the different modes of service at different places and the evidence of the witnesses placed before him the learned Subordinate Judge was decidedly of opinion that the notices were substantially served at the mahals of the defaulting tenures.
(5) That the original demand included interest at higher rates. These matters were the subject of consideration in the objections that were filed by the plaintiffs in the Astam proceeding and seeing that there was a change of law in respect of the rate of interest effected by the amendment of Section 67, Bengal Tenancy Act, the claim in respect of the interest was ordered to be reduced and there was therefore an amendment of the claims by the defendants setting right any defect in that way.
16. On these findings the learned Subordinate 1 Judge upheld the sales and dismissed the suits.
17. Mr. Bose appearing in support of the appeals urged the following points:
(1) That the sale held was vitiated by the fact that the very initiation of the proceeding for the sale was without jurisdiction, the petition not having been presented to the Collector as required by Section 8 (second) of Regulation 8 of 1819 and Section 8, Bengal Act, 8 of 1865.
(2) That the notice was not stuck up at the Sadar Cutchery of the zamindar himself as required by Section 8 (second) of the Regulation.
(3)(i) That a copy or extract of the notice : (a) was not stuck up as a matter of fact at the cutchery upon the land of the defaulter as required by Section 8 (second) of the Regulation; (b) was not published there in the manner laid down in Section 8 (second) of the Regulation; (n) That the peon did not comply with the requirements of the section in (a) procuring the receipt of the service of the notice; or (b) procuring the signature of | three substantial persons residing in the i neighbourhood in attestation of the notice having been brought and published on the spot; or (c) going to the Cutcherry of the nearest Munsif and getting the required certificate.
(4)(a) That as regards the sale of lot
18. Rampura the notices and the sales were bad in law inasmuch as the balances specified as due to the zamindar were in excess of the balance actually due. As regards the first of the above grounds urged by Mr. Bose it appears that the zamindar in the present case addressed his petition under Section 8 of Regulation 8 of 1819 to the Collector (EX. A) and filed the same on 17th April 1939, but the same was received by a Deputy Collector who on the same date made the following order on the petition itself 'R. K. to report at once.' 'R. K.' evidently meant 'record-keeper. This order was apparently made in view of B. 82 of the Rules made by the Board, of Revenue purporting to be under the Revenue and the Putni Sale Laws. These rules are not made in exercise of any statu, tory power and have no statutory force. Rule 82 says that:. Every application under Section 8, Regulation 8 of 1819, should be referred on receipt to the record-keeper for report. If the applicant, according to the record-keeper, is not the recorded proprietor or a registered manager of the Estate, the Collector shall reject application unless he is satisfied that the applicant is the proprietor or a manager appointed by a Collector, the Court of Wards, or by any Civil or Criminal Court and has applied for registration within six months of his succession as proprietor or his appointment as manager as the case may be.
19. The very next order is made by the Collector himself on 21st April 1939 after the report of the record.keeper and that order related to an act preparatory to or connected with the sale. It ran thus: 'Issue notice fixing 15th May 1939 corresponding to 1st Jaistha 1846 B.S. for sale.' The petition went before the Deputy Collector under the circumstances explained by D.W. 1, Kali Charan Mukherjee, the pleader who presented the petition on behalf of the zemindar. The pleader says:
The petition was received by the Senior Deputy Collector under the order of the Collector. There was an order written on a paper hung on the wall of the office of the Deputy Collector that I had occasion to see . I knew about 5 or 6 days before the filing of the petitions that the Senior Deputy Collector would receive the petitions. I came to know this from the notice hung on the wall of his office. It was hung in connexion with the Astam sale proceedings.
D.W. 2, Nalini Kanta Bose, the Astam clerk of the Hoogly Collectorate, said:
According to the general order issued by the Collector all Astam petitions are to be received by the Senior Deputy Collector. There was such an order in respect of the oases of 1346 B.S.
20. The contention of Mr. Bose is: (1) that con-duct of sale under Regulation 8 of 1819 is governed by the Bengal Act, 8 of 1865; (2) that Section 8 of that Act lays down that 'all acts preparatory to, or connected with the sale shall be performed by the Collector; (3) that for the purposes of this Act, the word Collector is defined in its Section 1 and that this definition does not include a Deputy Collector; (i) that the duty of the Collector prescribed by this Act cannot be delegated by him to any other officer; (5) that when the statute says that the petition shall be presented to the Collector, it means that it must be offered to the Collector for its acceptance by him and must be accepted by him; the act of acceptance is 'an act preparatory to or connected with the sale' within the meaning of Section 3, Bengal Act, 8 of 1865, and consequently can be done only by the Collector. Acceptance by the Deputy Collector in the present case, therefore, vitiated the initiation. As the petition was, in the present case offered to the Deputy Collector for his acceptance, no matter why and under whose authority and by whose direction, and as a matter of fact was accepted by him, it was presented to the Deputy Collector on 17th April and was not presented to the Collector on that date at all and as that was the statutory date for presentation to the Collector, there was no proper presentation in this case and consequently no sale proceeding was competent.
21. In support of the proposition that the acceptance of the petition was 'an act preparatory to sale' within the meaning of Section 3, Bengal Act, 8 of 1865, Mr. Bose referred us to the decision of this Court in U Cal. 7156 (Mookerjee and Cuming JJ.) where the question for decision was whether Clause (2) of Section 15 of Regulation 8 of 1819 was affected by Section 3, Bengal Act, 8 of 1865. It was held that the expression 'acts preparatory to or connected with the sale' did not include the act which the District Judge was enjoined to do by Section 15 (2) of the Regulation. The step contemplated by that section is to be taken after the sale had become final and conclusive for all purposes. Here the purchaser being opposed by some intermediate holders in his attempt to realise rents from the cultivators of the lands comprised in the tenure purchased by him applied to the District Judge to issue a proclamation under Section 15 of the Patni Regulation, 8 of 1819. The District Judge took the view that this was an act connected with the sale within the meaning of Section 3 of the Bengal Act, 8 of 1865. The High Court reversed his decision. In the course of the judgment Mookerjee J. observed:
22. Instances of acts preparatory to or connected with ( the sale were contained in Sections 8 and 9 of the Regulations as originally framed. Section 8 required the zamindar, when he desired to sell a putni for arrears of rent, to present a petition to the civil Court of the Distriot and a similar one to the Collector. Section 9 contained a provision that the sale should be made by the Registrar of the civil Court or, in his absence, by the person in charge of the office of Judge or of Magistrate of the District. These were clearly acts preparatory to or connected with the sale, and the effeot of Section 3 was to render these provisions nugatory and to transfer the functions to the Collector.
23. The relevant portion of Section 3 of the Bengal Act, 8 of 1865, runs as follows:
All acts preparatory to, or connected with, the sale whioh by Regulations 8 of 1819 and 1 of 1820, the Judge is required to perform, shall be performed by the said Collector.
24. So (1) the act in question must be an act preparatory to or connected with the sale; (2) the act must be the one which by Regulation 8 of 1819 and 1 of 1820, the Judge is required to perform. Clause (2) of Section 8 of Regulation 8 of 1819 was originally in the following terms:
On the first day of Bysakh, that is, at the commencement of the following year from that of whioh the rent is due, the zamindar shall present a petition 'to the civil Court of the district and a similar one' to the Collector containing a specification of any balances that may be due to him on account of the expired year from all or any talukdar....
Section 9 of the Regulation ran as follows:
All sales of saleable tenures applied for under the rules of this regulation shall be made in public cutcherry by the Registrar or acting Registrar of the civil Court or, in his absence, by the person in charge of the office of Judge or of Magistrate of the district within which the lands may be situated; the land shall be sold to highest bidder....
25. The mode of sale prescribed by Regulation 8 of 1819 was extended by Regulation 1 of 1820 to sales of patni tenures for the realization of arrears of rents by any legal process other than that prescribed by els. (2) and (3) of Section 8 of that Regulation and the Regulation of 1820 gave the conduct of all such sales (including the sale under the Patni Regulation) in the following terms:
The same shall be conducted, after application from the zamindar, by the Registrar or Acting Registrar of the Zillah or City Court, or, in his absence by the person in charge of the office of Judge of the District, in the mode prescribed by Regulation 8 above quoted, for periodical sales.
26. By Regulation 7 of 1882 of the Bengal Code the conduct of sales of the patni taluks and other saleable tenures, under Hegns. 8 of 1819 and 1 of 1820, and the performance of other acts preparatory to or connected with such sales, were transferred to the Collector or Deputy Collector of Land Revenue or Head Assistant to the Collector or Deputy Collector, subject to an appeal as therein provided. Section 16 of the Regulation ran as follows:
First: - Such parts of Regulation 8 of 1819 and Regulation 1 of 1820, as declare that the sale of patni taluks and saleable tenures, shall be conducted by the Begistrar or acting Begistrar, or in their absence by the Judge or Magistrate, and which require the Judge to perform other acts preparatory to, or connected with, the sale of such talooks or other saleable tenures, are hereby modified, and such sales shall hereafter be made, and other acts aforesaid be performed by the Collector or Deputy Collector of Land Bevenue, or Head Assistant to the Colleotor subject to an appeal to the Commissioner of Bevenue for the division, on the ground of the irrelevancy of the regulation as in other oases of a summary nature provided for in Section 4, Regulation 8 of 1831.
27. Then came Act 33 of 1850 which enacted:
Whereas by Clause (2), 8. 8, Regulation 8 of 1819 of the Bengal Code, it is provided that zamindars shall be entitled in certain oases to apply for the sale of patni tenures on which the right of sale for an arrear of rent is reserved, by presenting a petition to the civil Court of the District, and a similar one to the Collector, and whereas the petition to the civil Court has not been presented previous to many of such sales, and it is not necessary for protection of the patnidar, it is enacted as follows:
(1) After the passing of this Act, it shall not be necessary for the zemindar in any such case to present a petition to the civil Court, but a petition to the Collector shall be sufficient.
28. Thus, after the passing of this Act, 33 of 1850, the relevant provisions of Begulation 8 of 1819 stood modified to the following extent : (1) The petition for sale was to be presented to the Collector only (Act 33 of 1850, Section 1). (2) The conduct of the sale and other acts preparatory to or connected with the sale were to be performed by the Collector or Deputy Collector or Head Assistant to the Collector (Regulation 7 of 1832, Section 16).
29. Section 16 of Regulation 7 of 1832 was repealed by Act 10 of 1861 and this repeal gave rise to doubts as. to the authority by whom putni taluks were to be sold for arrears of rent. After this repeal of Begulation 7 of 1832 the position might become as follows : (1) The petition for sale had to be presented to the Collector only (Act 83 of 1850). (2) The conduct of sale and other acts preparatory to or connected with the sale fell to be done by the Registrar or Acting Registrar of the civil Court or, in his absence, by the person in charge of the office of Judge, or of Magistrate of the District (s. 9, Regulation 8 of 1819, as this provision was not formally repealed by Regulation 7 of 1832).
30. Bengal Council Act 8 of 1865 was enacted to remove these doubts. By its Section 3 it was enacted:
The sale for the recovery of arrears of rent of patni taluks...shall be conducted by the Colleotor of Land Bevenue in whose jurisdiction...the lands lie, and all acts preparatory to, or connected with, the sale of such under-tenures as aforesaid, whioh by Begns.8 of 1819 and 1 of 1820, the Judge is required to perform shall be performed by the said Collector.
31. Section 1 of this Act defines the word 'Collector' as used in this Act to include all officers exercising the full power of a Collector of a District. Thus, it seems clear that at the date when the Bengal Act, 8 of 1865, was enacted : (i) it was no part of the func tion of any Judge to accept the presentation of the petition. The petition had to be presented only to the Collector; (ii) the conduct of the sale and the performance of other acts preparatory to or connected with the sale were the functions of the Judge under certain circumstances.
32. These functions alone were transferred to the Collector by the Act and this transference had nothing to do with the function, if any, in connexion with the presentation of the petition. It remained the function of the Collector under Act 33 of 1850 and if it was possible for the Collector to delegate this function to any officer this power of delegation, if any, remained unaffected. It may be noticed here that all this time Begulation 8 of 1819 stood unamended. Consequently even after this Act 8 of 1865 the Collector shall come in only after 'the Registrar or acting Registrar of a civil Court.' The function, however, of the Registrar or acting Registrar ceased after the enactment of Section 16 of Regulation 7 of 1882 and it did not revive in practice even after the repeal of Section 16 of that Regulation by Act 10 of 1861. The Patni Regulation was amended by Act 16 of 1874 whereby the words 'to the civil Court of the district and a similar one' in Section 8, Clause (2) and the words 'by the Registrar or acting Registrar of the civil Court or in his absence, by the person in charge of the office of Judge or Magistrate of the district within which the lands may be situated' in Section 9 were formally repealed. After the above course the relevant portions of the sections stand thus:
Section 8, Second. - On the first day of Bysakh that is, at the commencement of the following year from that of which the rent is due, the zamindar shall present a petition to the Colleotor, containing a specification of any balances that may be due to him on account of the expired year from all or any talukdars or other holders of an interest of the nature described in the preceding clause of the section. s
The same shall then be stuck up in some conspicuous part of the cutchery, with a notice that if the amount claimed be not paid before the first of Jyte following the tenures of the defaulters will on that day be sold by public sale in liquidation
Section 9 All sales of saleable tenures applied for under the rules of this Begulation shall be made in Public Cutchery; the land shall be sold to the highest bidder....
33. As to the power of delegation, Regulation 9 of 1833 by its Section 20 enacts:
The Deputy Collectors appointed under thisBegu-^ lation are to be in all respects subordinate to the Collector under whom they may be placed, and are required to perform all duties assigned to them by that functionary.
Section 21 of the Regulation says:
It will be at the discretion of latter officer to employ them...generally in transaction of any other part of the duties of a Collector.
34. Section 14 of Regulation 2 of 1793 enacted:
In the event of the death or removal of a Collector or of his absence from his station, the senior Assistant on the spot is to perform the duties of Collector, and the dewan and the public officers of the Collec-torsbip are accordingly to obey his orders.
34. Regulation 4 of 1821, a regulation inter alia to define the duties and powers vested in Assistant Collectors or other officers,...by Clause (3) of its Section 8 provided as follows:
The Collectors of revenue are hereby authorised . to delegate to their assistants any part of their prescribed duties, which from the extent of their general business or other cause, they may be unable to give due attention themselves;....
35. From a review of the relevant provisions of the various statutes quoted above it seems clear:
1. That the authority to whom the petition is to be presented is provided for by Regulation 8 of 1819 itself and not by Section 3 of the Bengal Act 8 of 1865;
2. That the duty, of the Collector to receive the petition thus presented can be delegated by him to a senior Deputy Collector;
3. That the act of presentation of the petition obviously is not one of the acts contemplated by Section 3 of Act 8 of 1865, as that section only contemplates acts which by Kegns. 8 of 1819 and 1 of'1820 the Judge was required to perform. The presentation was and still is required to be done by the zemindar. Even its acceptance was required to be by the civil Court or by the Collector;
4. That the acceptance of the petition $ presented need not be by the hands of the Collector. It is certainly within the competence of the Collector to appoint the manner of presentation and when the petition is presented in that manner, it is presented to the Collector within the meaning of Section 8 (second) of the Regulation;
5. That acts preparatory to or connected with the sale are to be done by the Collector and this duty may not be delegated by him to anybody else. (Section 3 of the Bengal Act 8 of 1865).
36. As regards the second point urged by Mr. Bose, we are not in a position to accept the view that the notice was not stuck up at the Sadar cutcherry of the zemindar himself. The learned Subordinate Judge who saw the witnesses deposing and had thus an ( opportunity of noticing their demeanour in the witness box accepted their statements and became of decided opinion that a copy of the notice was duly published at the Sadar cutcherry of the defendants. Nothing could be placed before us which will entitle us to disturb this conclusion.
37. As regards the third point again we are satisfied from the evidence on record that a copy of the notice was, as a matter of fact, stuck up at the cutcherry of the defaulter on the land of the defaulting patni. The evidence on this point is quite satisfactory, and, we are in perfect agreement with the learned Subordinate Judge in this respect. As has been pointed out by the learned Subordinate Judge, for reasons of their failures in previous cases on the question of publication of the notice in the muffassal the defendants took extraordinary precaution in the present proceedings. It can hardly be questioned that the peon went to the locality and took care to make the matter as much public as possible. It is absurd to suggest that after all this he failed to find out the Cutcherry or that he intentionally refrained from going there.
38. At the same time, it must be said that the evidence on record does not satisfy us that the peon complied with the requirements of the statute as to the procuration of the receipt or of the signature of three substantial persons of the neighbourhood attesting the service of the notice or of going to the nearest cutcherry of the Munsif. Mr. Bose contends that reading the whole section and remembering that the Legislature uses the words 'published' and ' publication' in connexion with the notice for the defaulter's cutcherry as distinguished from the words 'served' and 'service' used in connexion with the other notices: (1) the notice for the mofussil is required by the statute to be stuck up at some conspicuous place of the Cutcherry; (2) and this factum of the notice having been thus stuck up is required to be published; (a) first, by calling the defaulter or his manager to witness this fact; (b) or failing that, by calling three substantial per. sons of the locality to witness this fact.
39. If this is what is required by the statute for the publication of the notice then it must be confessed in this case that the notice has not been duly published. There is no evidence to justify the finding that the peon attempted to publish the factum of service in this manner, though there is ample evidence on record to show that the factum of service was otherwise published in the locality in the widest possible man-ner. Mr. Bose contends that Section 8 (second) of Regulation 8 of 1819 contemplates that the notice sent for service at the defaulter's cutcherry must be served: (1) by the same being stuck up in some conspicuous part of the cutcherry; (2) in the presence of the defaulter or of his manager; (3) in case the defaulter or the manager does not give the receipt then again in the presence of three substantial persons residing in the neighbourhood; (i) or at least after service by having stuck up the notice the service must be published (a) by bringing the defaulter or his manager to witness the fact; (b) in default of them by bringing three substantial persons of the locality to witness the fact. The contention of Mr. Bose is that the requirements of the section relating to the procuration of the evidence of publication of the notice must be divided into two distinct parts; one, laying down the manner of the publication required by the statute and, the other, relating simply to the procuration of the evidence of the publication. According to him it is only the last of the above requirements that has been declared directory by the Courts. The requirements relating to publication are mandatory and their non-observance vitiates the sale.
40. We are unable to read this division into these requirements and to accept the contention that here the statute laid down the imperative manner of publication for the mofussil notice. The section nowhere says that the notice is to be published in this manner. In our opinion, so far as the service of notice is concerned, all that the seetion requires is that it shall be stuck up in some conspicuous part of the Cutcherry. The section only requires that 'a copy...shall be I by him sent to be similarly published at the Cutcherry.' The word 'similarly' refers to the mode of service at the Sadar cutcherry and there can be no doubt that service of that notice is to be simply by the posting thereof. The service will be perfectly legal and complete as soon as it is stuck up in some conspicuous part of the defaulter's cutcherry. The word 'published' refers only to this mode of service. The zemindar is made exclusively answerable for the observance of this form, 'the forms above prescribed.' The requirements of the section as to the receipt and attestation follow this provision and consequently as the section stands it does not make 'the zamindar exclusively answerable' for the observance of the requirements as to the receipt or the attestation. In our opinion, (1) it will be due service of the notice if it is stuck up at some conspicuous part of the Cutcherry; (2) procuration of the receipt or attestation is no essential part of the service - is no part of the mandatory form to be observed by the zamindar; (3) it is not essential that the notice should be stuck up in the presence either of the defaulter or of his manager or of the substantial neighbours; (i) the receipt or the signature of the attesting witnesses is required only as evidence of the service and their non-observance may render the proof of service difficult, but would not otherwise affect the service of the sale. All that is required is that in order to procure evidence of the service these persons may be requisitioned to witness the already completed fact, namely that the notice has been stuck up. This is only a requirement for securing the evidence of service. As was observed by the Judicial Committee in 10 I.A. 19* at p. 21,
if, immediately upon posting the notice, the peon posting it can find the defaulter or his manager, he is bound to ask for a receipt from the defaulter or his manager, signed under his hand, and if he gets such a receipt there is an end to all questions as to the service. If he does not find the defaulter or his manager, or if that person will not give a receipt then he is to call in three substantial people of the village to attest the fact, which will be apparent to their eyes, that the notices in question have been published.
41. It is not even the requirement of the law that the service of the notice must be proved by the evidence thus procured. The service can be proved by other evidence, and if so proved, it is immaterial whether the evidence of service was procured in the manner laid down by the regulation. Where a statute is passed to create duties performable by any person who brings himself within the opera, tion of the statute, the question often arises as to what liability is incurred by neglect, omission, or refusal to perform statutory duties. This question usually resolves itself into the inquiry whether the provision is mandatory or directory. If it is directory, the disobedience to the Act does not entail any invalidity. If it is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.
42. The scope and object of a statute are the only guides in determining whether its pro-visions are directory or imperative. In the absence of an express provision, the intention of the Legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative. No universal rule can be laid down for the construction of statutes as to whether any en-actment shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed: Liverpool Borough Bank v. Turner (1860) 2 De. F. & J. 502 at p. 507, per Lord Campbell L.C. In each case the subject-matter is to be looked to and the importance of the provision in question in relation to the general object intended to be secured by the Act, is to be taken into consideration in order to see whether the matter is compulsive or merely directory. In the particular case before us, the statute secures to zemin-dars the extraordinary power of realising what they claim as balance due before the claim is established in any Court of justice. In securing this extraordinary power the statute lays down certain formalities to be observed by the zemindars and expressly makes them solely responsible for the observance thereof. Where powers, rights or im. munities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the Legislature (Maxwell on the Interpretation of Statutes, Edn. 7, p. 316.)
43. It seems clear from the provisions of Section 8 itself that the statute made a distinction between the two classes of its provisions and made the observance of the earlier forms mandatory. At any rate, it must now be taken as the settled rule that (1) the forms mentioned before the passage where the statute says : 'The zemindar shall be exclusively answerable for the observance of the forms above prescribed' are mandatory and any material deviation therefrom will vitiate the sale; (2) the requirements as to the procuration of receipt, attestation and certificate are directory and their non-observance would not affect (a) the observance of the compulsory matter or (b) the sale. In our opinion, the law is now well settled in this respect, as will appear from the decisions in 9 W. R. 242;2 2 I. A. 71;3 10 I. A. 19* and 14 I. A. 30.6 9 'W. B. 2422 (Sir Barnes Peacock C. J., and Jackson J.) was a suit to cancel a sale under Regulation 8 of 1819. Sir Barnes Peacock observed:
The material part of Clause (2), Section 8, Regulation 8 of 1819, so far as this case is concerned, is that the notice required to be sent into the mofussil shall be served. The zamindar is exclusively answerable for the observance of the forms prescribed by that clause. The subsequent part of the section which prescribes that the serving peon shall bring back the receipt of the defaulter, or of his manager, or in the event of his inability to procure it that he shall obtain that which by the Regulation is substituted for it, is merely directory, and if not done, does not vitiate the sale, provided the notice is duly served.
44. It was found in this case that the notice was duly served. Sir Barnes Peacock observed that:
Under these circumstances it was not necessary for the Principal Sudder Ameen to find whether the peon who served the notice had or had not duly complied with all the directions of the Regulation with reference to what should be done after the service in verification thereof.
45. In 2 I.A. 71 (Sir Montague E. Smith) the suit was brought by a putneedar to set aside the sale of his putnee taluk which had been sold for arrears of rent through the Collector under the provisions of Kegulation 8 of 1819. The sale was impeached on various grounds. But one such ground only remained for consideration and that was whether the witnesses who had signed the receipt of service of notice under Section 8 (second) at the cutcherry upon the land of the defaulter were substantial persons within the meaning of the regulation. It was found in this case that the receipt of the defaulter could not be obtained. His gomastha was seen, but he refused to give a receipt. Thereupon, the peon obtained the signature of seven persons three of whom were proved to be 'residing in the neighbourhood'. Of these three persons one was the Mundal of the defaulter's mahal and another was the chowkidar of the village. The third was a tailor in the village. The Principal Sudder Ameen held that
a more respectably signed document cannot be, from the circumstances of the country (the respectable portion of every community being at all times averse to appear in a Court of justice) 'expected' and that a receipt signed by the three persons 'must be considered a sufficient proof for the service of notice'.
46. On appeal to the Judge of the 24-Par-ganas, the learned Judge affirmed this decision upon two grounds : (1) The evidence proved that the three persons who were called as witnesses at the trial of the case in the lower Court saw the notice affixed to the door; they were substantial within the meaning of the law; (2) all that is required is good evidence of the fact of the publication of the notice on a certain date. The further directions of the law are intended for the guidance of the Collector only:
47. Before putting up the putnee tenure to Bale lie must require proof that the notice was duly served, and the law says that such proof must be of such and such a nature. The Collector is not required to take evidence; he has to examine merely the written documents produced by the zamindar, and if the proof appears to be prima facie good, the putnee is sold on the responsibility of the zamindar. Then, if the putneedar has recourse to the civil Court, the issue is not whether the proof adduced to the Collector at the time of sale was strictly within the words of the law, but whether the evidence adduced before the Court to prove the service of notice on or before a certain date is credible and satisfactory.
48. The learned District Judge further observed:
The reasonable object of the law is that the defaulter should have timely notice of the intention to sell; and if it be proved that such notice was given to the satisfaction of the Court, the number of witnesses present, their actual status in social life, and the distance of their dwelling houses, are points which are immaterial.
49. Mr. Beaufort was the District Judge and this decision was given by him before 1864, long before the decision of Sir Barnes Peacock in 9 w. B. 242.2 The Judicial Committee quoted the above from the judgment of the learned District Judge with apparent approval and also referred to and quoted from the decision of Sir Barnes Peacock in 9 w. B. 2422 with approval. The Judicial Committee observed:
Their Lordships are disposed to agree with the judgment of the High Court as delivered by Sir Barnes Peacock, confined as it is to cases where there is proof that the notice was duly served. The consequences of holding that a statutory sale of these putnees oould be set aside because one of the witnesses to the notice turned out not to be substantial, when it was in fact served, would be, to give too great effect to form at the expense of substance.
50. On further appeal to the High Court from the decision of the District Judge, Kemp and Glover JJ. at first upheld that decision on 28th July 1864, but reversed it on review on 18th February 1865. On review the learned Judges held:
Now, in this case, the attesting parties are sufficient in number, and they reside in the neighbourhood, but, with the exception of the Mundal, the rest are not what can be called substantial persons. One is the chowkidar of the village, and the other a tbicka tailor. The Legislature invested the zemindar with the powers of bringing subordinate putnees to Bale, and made him exclusively answerable for the due observance of the prescribed process under which such tenures could be brought to sale. To protect the putneedar from fraud, it was enacted that the notice of sale must be attested by three substantial persons. Now, it is clear that, unless the attesting parties answer to the common meaning to be put upon the word 'substantial', the putneedar would be wholly without remedy in case of false attestation...the word 'substantial' means a wealthy man from whom damages could be recovered by the putneedar, supposing the attestation to be false.
51. The Judicial Committee did not approve of this view. It is indeed difficult to see why the putneedar will be> absolutely without any remedy if the attesting witnesses are not wealthy enough. In case of sale without service he has his remedy either by getting the sale set aside or by getting damages from the zemindar. It is somewhat difficult to imagine that the Legislature had in mind the possible damages from the attesting witnesses. There is no legal obligation on the part of these persons to come and attest and if the intention supposed by the High Court be ascribed to the Legislature, then the Legis' lature was laying down something knowing full well that such persons will never be available for the purpose. The final decision of the Judicial Committee in this case was that the finding arrived at by the District Judge that these were substantial persons, was one of fact which he might properly come to upon the evidence on record. In 10 I. A. 19* (Lord Fitzgerald), the question was whether a copy or extract of the notice was sent by the zemindar to be published at the cutcherry or at the principal town or village upon the land of the defaulter as required, by Section 8 (second) of Regulation 8 of 1819. The Judicial Committee observed after quoting Section 8 (second) from the Regulation:
That is a very important regulation, and no doubt it was enacted for a certain and defined policy, and ought as a rule to be strictly observed. Their Lord-ships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar who institutes the proceeding exclusively responsible for its regularity. Their Lordships do not, however, intend at all to controvert a decision to which their attention was called, of Sir Barnes Peacock, when he filled the office of Chief Justice of the High Court of Bengal, to the effect that if the notice itself has been duly published, if it is not I matter of controversy, if the fact was ascertained that it was published, then one would not regard any objection either to the form of the receipt or the absence of the receipt itself. That decision was alluded to in a case before this tribunal, in which their Lordships say they are disposed to agree with the judgment of the High Court confined as it is to cases where there is proof that the notioe was duly served. That, again, is where there is no controversy as to' the fact of the service. It seems to their Lordships that the object of the Regulation was that due service or publication should not be left matter of controversy. The evidence should be secured immediately afterwards, and exist in writing, and be referred to by the proper officer as part of the foundation of the sale. Accordingly, if, immediately upon posting the notice, the peon posting it can find the defaulter or his manager, he is bound to ask for a receipt from the defaulter or his manager, signed under his hand, and if he gets such a receipt there is an end to all questions as to the service. If he does not find the defaulter or his manager, or if that person will not sign a receipt, then he is to call in three substantial people of the village to attest the fact, which will be apparent to their eyes, that the notices in question have been published. If ,hey object, as very likely villagers would object, to be parties to the proceedings for the enforcement of a sale, then he is obliged to go to the nearest Munsif, and make a voluntary oath of the fact of service, which act is immediately recorded, and forms the foundation upon which the officer afterwards proceeds in carrying out his sale. Thus, the evidence that the notice has been given is immediately preserved and the fact is not left to be matter of controversy afterwards.
52. Their Lordships further pointed out that the present case differed from that before the Chief Justice of Bengal, 9 W. R. 2422 and equally from the case in 2 I. A. 71,3 in this that the fact of service here was a matter of controversy. Their Lordships observed:
We should be obliged to assume, in order to arrive at a conclusion one way or the other, either that there was a conspiracy to cheat and deceive upon the part of the plaintiff Charoo and the two Chowki-dars who are represented to have assisted in the fraud, or that there was a conspiracy on the part of the peon sent to effect this publication, who, having, it is said, neglected his duty, conspired afterwards with a confederate to make a false statement and forge a receipt.
53. The Court of first instance in this case held in favour of the defendant and refused to set aside the sale. The High Court reversed this finding. The Judicial Committee observed:
It shews that not alone is the fact of publication in controversy, but that the matter is so involved that it is difficult to come to a safe conclusion upon it.
54. Their Lordships therefore did not propose to say, upon this controverted question of publication, on which side the weight of evidence lay, but dismissed the appeal, observing that the doubt or difficulty in this case was one that would not have arisen save by the neglect of those representing the I Maharaja. There was no evidence in this case save the statement of the peon himself that the notice was ever entrusted to him for service. The Judicial Committee observed:
There is no evidence save the statement of the Peon Khetu that the notice was ever entrusted to him; but supposing it was entrusted to him for publication, his duty, and that of the officers of the Maharajah, would have been clear and plain. He should have ascertained when he went to make the service that the person whom he represents to be Charoo, to whom he says he delivered the notice, was the defaulter, or the agent of the defaulter. He should then have obtained his receipt, a receipt proper in form. If he could not obtain it he should have followed the course prescribed by the Begula-tion, and should at once have returned the documents to the proper officer of the Maharajah. It would then have been the duty of that officer to ?examine the receipt and see that it was in all respects complete and regular as part of the foundation ( of the title afterwards to be given by sale. Their Lordships have before them a oopy of the supposed receipt, which appears to be enveloped in mystery from the time it was alleged to have been signed. The peon gives no history of it. What did he do with it? To whom did he give it? Where has it been? All that is left in obscurity, and no confirmatory proof is produoed from amongst the servants of the Maharajah that the peon, having effected what he alleged to be service, brought in this receipt with him, and filed it in the Colleotorate or with the proper officer of the District. What is the document itself when we come to look at it? The professed signatures are at the top. The first is that of Brojo Mohun Banerjee. That purports to be the name, not quite the correct name, of the registered proprietor of the talook, who has been dead many years, and if this had been brought to and examined by the. servants of the Maharajah they must have seen that the dead man could not have signed it; there is no doubt that they knew that this registered proprietor was not alive. The next signature is that of Redoz Nath Banerjee, who is put down as the karpurdaz, meaning the karpurdaz of the dead man, Brojo Mohun Banerjee. This turns out to be a non-existing individual; there is no such person. Then we come to the attesting witnesses at the foot, and they are Goburdhan Chowkidar and Gopal Chowkidar, residents of Salmula. The inference from that would be that they were the Chowkidars of SalmulaX If there are such persons in existence, there are no such Chowkidars at Salmula, and neither of the Chowkidars of Salmula have been produced on either one side or the other. This document or receipt so produced by the peon is by no means a compliance with the provision of Regulation 8. Their Lordships think that the absence of that care and attention which ought to have been shewn with reference to this document, and the absence of contemporaneous inquiry whether there had or had not been a publication of this notice, as required by the regulation, have created the very difficulty which the regulation was intended to prevent; and as the regulation makes the zamindar exclusively answerable for the observance of its provisions, their Lordships are of opinion that the issue as to the regulation ought to be found in favour of the respondents.
55. In 141. A. 30 (Lord Hobhouse), the question for decision was whether service on the defaulter personally was sufficient or whether in spite of such service it was necessary to serve the notice at the cutcherry on the land of the defaulter. In this case the Judi-cial Committee again approved of the decision of Sir Barnes Peacock in 9 W. E. 242.2 It was observed:
The formalities which the zamindar has to observe, and the evidence by which that observance has to be proved, are two totally distinct things. All that Sir Barnes Peacock decided was that if the observance of the requisite formality was distinctly proved it was not necessary to have the mode of proof which the regulation directs. In the case in 10 I. A. 19* this committee found that the question whether the requisite formality had been observed depended on conflicting evidence, but that the statutory mode of proof had clearly not been followed, and they held that the decision must go against the zamindar, whose business it was to follow the prescribed method. They did not differ from Sir Barnes Peacock, nor did they hold that the statutory proof was the only proof that could be given.
56. A careful consideration of all these cases will yield the following relevant results:
1. The requirements as to (a) contents of the notice, (b) places where the notices are to be served, (c) the time of service and (d) the service itself are mandatory; those requiring the procuration of receipt, attestation or certificate are merely directory.
2. The service of notice will be complete and sufficient as soon as the notice is stuck up in some conspicuous part of the defaulter's Cutcherry on the defaulting putni; this service itself is referred to as publication in the section. The word 'published' means the same thing as 'served' as in the case of notice at the zamindar's cutcherry.
3. The service can be proved by evidence other than what is required by the section to be procured by the peon, 2 I. A. 71a and U I. A. SO.5
4. When the service (a) is either not controverted (b) or though controverted, is proved to the satisfaction of the Court by the evidence on record, the defect or irregularity in or the total absence of the statutory evidence (i.e. receipt, signature of attesting witnesses or certificate of the Munsif etc.) will be irrelevant consideration and will not in the least affect the sale; 10 LA. 19;* 14 LA. 305 and 9 W. E. 242.2
5. When the service is controverted and ,the evidence aliunde of the service is evenly (balanced, the zemindar must fail, 10 LA. 19.
57. Coming now to the fourth point urged by Mr. Bose, it appears that in the petition to the Collector under Section 8 (second) of Regulation 8 of 1819 by the defendants (zamindars), the specification of the balances claimed as due to them included interest on the arrears at the rate of I2i per cent. I(EX. A, A,). The amount claimed was arrived at including interest at this rate and the mandatory notices required by the section mentioned this to be the amount to be paid before the first of Jy te following, in default of which, it was intimated, that tenure would be sold on that date. 1st of Jyte corresponded to 15th May 1939. On 12th May 1939 the plaintiffs contested the demand specified in the notice advertised under Section 14 (second) of the Kegu-lation (EX. B.B). A summary investigation was started, but no award could be made before the day appointed for sale. It appears that the award was made on the date of sale reducing the rate of interest and thus reducing the claim in one case by Es. 320 and in the other case by Es. 245. The sale was held on that very date for the reduced claims.
58. The contention of Mr. Bose is - (1) that according to Section '14 (second)(a) either the award should have been made before the day appointed for sale or (b) the summary investigation should have been kept pending, giving the plaintiffs the opportunity of availing themselves of the provisions regarding the stay of sale contained in the second part of Section 14 (second). His contention is that had the award been made before the day appointed for sale he would have been enti-tied, as of right, to pay off the reduced demand and thus to prevent the sale. If the investigation was kept pending then either the sale would have been stayed, or if the zamindar so desired, it would have been made on his responsibility for the original demand. In such a case the plaintiffs would have been entitled to get the sale set aside by a regular suit on the admitted'*?a,cts of this case. Mr. Bose further contends that as Section 8 (second) of the Regulation requires that the petition should contain a specification of the balance that may be due to the zemindar, and as the balance specified in the present case was admittedly in excess of the balance actually due, the petition itself was bad in law and this defect affected the entire proceedings in sale inasmuch as the demand made in the mandatory notices thus became excessive. According to him the principle underlying the decision of the Judicial Committee in 19 i. A. 1911 makes such excessive demand in the notice a vitiating cause invalidating the sale.
59. Dr. Basak appearing for the respondents contends that the requirement as to the specification of the balance due is not mandatory and that an error in this will not affect the sale. Dr. Basak places the following matters for our consideration in this connexion : (1) Error in the matter of accounting is not unusual; there is possibility of dispute also in this respect; if any error in the amount or any successful contest by the defaulter regarding the amount due is to vitiate the proceeding then the power of sale will be rendered absolutely nugatory; the express provision in Section 14 (second) to the effect that 'the award made in the case of contest will, of course, regulate the ulterior process,' indicates that the sale will proceed if the awarded amount be not paid and thus implies that the proceeding was not altogether bad for this infirmity in the specification of the balance due in petition; (2) section 10 provides for elimination of any possible error before sale and Section 14 (second) provides for settlement of any possible dispute as to the amount claimed; (8) the statute itself contemplated the possibility of such error or dispute and made provisions for safeguarding against any possible pre-judice to the persons interested; the parties interested will all have right to make payments even on the date of sale after the error is rectified or the dispute is settled and thus to stop the sale by reducing the balance due to nil; for the proposition that the defaulter will have right to pay even on the date of sale, Dr. Basak relied on the language of Section 10 as also on 41 0. w. H. 12628 at p. 1269; (S. K Ghose and Patterson JJ.) 47 oal. 3879 (Mukherjee and Panton JJ.). (4) The decision in 19 I. A. 1911 is not against this view; there the sale was a midyear one, and an examination of Sections 8 (third), 10, 13 (second) and 14 (first) will show that in the case of midyear sale, the defaulter can prevent the sale by paying a lesser amount than the balance due (three-fourths of the balance) only if the payment be made during the notified period, that is, before the day appointed for the sale. On the date of sale, nothing short of the whole balance will be of ony avail either to him or to the other persons interested in preventing the sale; consequently there the omitted clause in the notice was considered imperative.
60. Mr. Bose in reply contends that the peti-tion and its contents are made imperative by the statute and that the imperative character of the requirement as to the specification of the balance due is borne out by the fact that all the imperative notices are simply to notify the balance thus specified and Section 14 (second) makes a very valuable right of the defaulter hinge upon the zamin-dar's demand as specified in the notice advertised. If the defaulter's objection be not disposed of before the day of sale he cannot get the sale stayed unless and until he is prepared to lodge the amount thus demanded. Mr. Bose further contends that 8.10 does not provide for provision of the balance claimed except on the ground of payments made since the presentation of the petition under Section 8 (second) and that, even assuming that the section authorises this revision, this will simply eliminate the arithmetical errors in the accounting and will never touch ih& infirmity consequent upon any dispute re. garding any of the items. Section 14 (second) is the only relevant provision pertinent to the question and there if the process is to continue regulated by the award made it is because of the express statutory provision to* that effect. That does not in the least minimize the importance of the accurate specification in the petition under Section 8 (second) and does not indicate that the Legislature intended to make this important require, ment merely directory. In 19 I.A. 1911 (Lord Shand), the notice to be served at the cutcherry of the defaulter was itself defective inasmuch as instead of intimating that the payment of f of the total demand would prevent the sale as required by the terms of Section 8 (third) of the Regulation, it intimated that in order to prevent the sale the total demand must be paid. The Judicial Committee considered this to be a fatal defect and observed:.A zamindar having an interest inatalook of this kind has undoubtedly, under the provisions of Regulation 8 of 1819, a power of sale in the case of default in. payment of the rent; but that power of sale which is given as a very summary remedy, and which may be exercised immediately on arrears arising, is given under important conditions the fulfilment of which is of the utmost consequence not only to the person having a right to the talook, but to all those who have rights under him; not only to the patnidars but to the sub-lessees, mortgagees, and other incumbrancers whose rights may be affected or extinguished. by the sale taking place It appears to their Lordships to be clear that the notice, which is a condition precedent to any sale taking place under this clause, must in all material respects comply with the provisions of the clause, and that therefore there should be intimation made to the debtor, in terms of the clause, not only of the balance due, but an intimation that unless the whole of the advertised^ balance shall be paid before the date in question, or so much of it as shall reduce the arrear, including any intermediate demand for the month of Kartick to less than fourth of the total demand of the zamindar, the sale will take place....
61. Then the following passage from the judgment of the High Court was quoted by the Judicial Committee with approval and their Lordships adopted the expression of opinion contained therein..The object of the publication of this notice, is to give not only to the defaulting patnidars, but dar-patnidars, mortgagees and other encumbrancers' notice of the sale. It may well be, that the patnidar, darpatnidar, mortgagees, or other encumbrancers, would have available, for the purpose of saving the estate from sale, 75 per cent, of the arrears due, but not the whole. We are of opinion that if the zamindar chooses to bring into operation the provisions of-ol. (3), Section 8, and to get a half year's rent by means of this regulation, he must strictly comply with the conditions laid down in the section. We think that all the requirements in Clause (2) of Section 8 must be imported into Clause (3) of that section mutatis mutandis, and therefore we think that the serving of the notice is a condition precedent to the sale being held, and that the notice so served must be a good notice; that is to say, it must be a notice which shall put all parties concerned in saving the tenure from sale in possession of the knowledge of what really they will have to do if they desire to save the tenure, and would be purchasers in possession of information as to the amount they will have to spend if they wish to purchase the property.
62. Referring to the notice required by 8.8 (second) the Judicial Committee observed:
The notice in that case ought to state, in terms of the clause, that if the full amount due, and specified in the notice be not paid before the date therein mentioned, the tenure of the defaulter will be sold by publio sale. In order to have that notice in proper form it must contain, not merely a specification of the arrears, but a notification that the sale will proceed unless payment of the rent be made within the time limited.
63. It must be noticed that save as provided in Sections 13 (second) and HA the ^Regulation does not make any express provision entitling the darpatnidars, mortgagees and other encumbrancers to make payment and thus to prevent the sale of the tenure. The principle underlying Section 108 (j), T. P. Act, may determine their liability to the zamindar and their right to make payment may be determined by such liability. Ordinarily the zamindar as the promisee or creditor for the rent may not be under any obligation to accept performance, tender or payment from anybody other than his promisor. It seems that the notices under Section 8 of Hegn. 8 of 1819 are intended to be invitations to all persons interested in preventing the sale to make the payment. This seems to follow from the decision of the Judicial Committee in 191.A. 1911 and in my opinion this is one of the weighty reasons why the clause 'if the amount claimed be not paid before the first of Jyte following' must be looked upon as imperative. Even without any such invitation the putnidar will have right to pay till 1 the property is sold. The notice for the midyear sale is imperative in another respect also. It is directed to contain an intimation that an amount lesser than the amount due will also suffice to prevent the sale. It may be noticed that apart from this notice the Regulation does not create any right in the debtor or in any other person interested to tender a lesser amount in order to prevent the sale. Apart from this invitation from the creditor the persons interested cannot make this lesser payment to prevent the sale. The ground on which a sale under Regulation 8 of 1819 can be assailed is given in Section 14 (first) of the Regulation thus:
It shall, however, be competent to any party desirous of contesting the right of the zamindar to make the sale, whether on the ground of there having been no balance due or on any other ground, to sue the zamindar, for the reversal of the same, and upon establishing a sufficient plea, to obtain a decree with full costs and damages.
64. As the section stands, the grounds available for the reversal of the sale are : (1) No balance having been due, (2) any other ground. In either case the success in the suit depends upon the establishment of a sufficient plea. So, practically, in every suit for the reversal of a sale held under Regulation 8 of 1819 the Court is fo be satisfied that the plea that has been established is a sufficient one. It seems certain that if it is established that no balance was due it will always be a sufficient plea for the reversal of the sale. The very right of the zamindar to sell the property is dependent on the existence of the arrear and consequently if no arrear was due, the zamindar had no right to sell the property.
65. It seems also certain that if the mandatory form preparatory to or connected with the sale are not strictly complied with, the non-compliance, if established, will be a sufficient plea for the reversal of the sale without anything more, subject, of course, to the maxim 'de minimis non curat lex' This seems to be well settled by the several decisions of the Judicial Committee. Thus the statute requires that in the petition presented to the Collector the balance due should be specified and in certain cases three-fourths of the balance thus claimed should be named in the notice as the amount payable to prevent the sale. Even if the balance due be correctly given in the petition, but in the notice instead of demanding three-fourths of the same, the whole is demanded, the sale held after such notice should be reversed without establishing anything more. The plaintiff in such a case need only establish this defect in the notice. It is not for him to establish that had there been no such defect he would have paid the lesser amount or that he offered the legally payable amount. The Judicial Committee in 191. A. 1911 discussed how otherwise the defaulter or his under-tenants might have prevented the sale only to show what object the Legisla. ture had in view in making these provisions mandatory.
66. In my opinion, (1) failure to observe strictly any of the mandatory requirements will always be a sufficient plea within the meaning of this section; (2) failure to observe any directory requirement may also be a sufficient plea within the meaning of the section; in such a case what is and what is not a sufficient plea will have to be deter, mined by the Court with reference to the facts and circumstances of each case and the possible prejudice suffered by the parties interested by the defect. It may be that in such a case the sufficiency or otherwise of the plea shall have to be determined with reference to the prejudice of the person claiming the reversal of the sale.
67. The question before us is whether it is imperative that the balance due should be correctly specified in the petition presented under Section 8 (second) for the initiation of the sale, and whether the error in specifying any amount in excess of what is actually due shall be a sufficient plea for the reversal of the sale. It seems obvious that in the notices the specification of the amount of demand is a material requirement. In order to put all the parties concerned in saving the tenure from sale in possession of the knowledge of what really they have to do, it cannot be denied that the amount due is an essential item. As the regulation stands it is the specification of the balances due in the petition under Section 8 (second) which will determine the specification in the notices. I feel, therefore, very great difficulty in saying that the accuracy in the specification of the balance due is merely directory and not mandatory. In my opinion, this is a mandatory provision and I feel very much relieved in seeing that this view finds support in the judgment of my learned brother Mitter J., in Kiran Chandra v. Brajesh Charan : AIR1940Cal306 . Referring to the decision of the Judicial Committee in 19 I.A. 1911 my learned brother observed:
The principle which we deduce from the said decision is that it is essential that the elaim specified in the notice must not be more than what in fact is claimable; for the patnidar, darpatnidar, mortgagees, and other encumbrancers may have available to them an amount which may satisfy what was demandable. in law but not the excessive demand. The fact that the Astam notice which has to be published under Section 8 has an important significance for the dar-patnidars, under-tenure holders, mortgagees and encumbrancers and the fact that they have rights to be protected from the drastic effects of a patni sale cannot, in our judgment, he ignored.
68. I respectfully agree with this view and, in my opinion, it is mandatory that the balance actually due should be specified in the petition :under Section 8 (second) and any excess specification in this, subject, of course to the maxim 'de minimis non curat lex,' will vitiate the sale.
69. I do not feel very much pressed with the contention of the respondent that there is a provision in Section u (second) for contesting the demand and that this along with the provision therein contained that the award made in such contest 'will, of course, regulate the ulterior process' would show that the ulterior sale will not be affected by the error in the notice in this respect. We do not know how 'the ulterior process will be regulated' by the award. It does not follow from this provision that even if the amount demanded be found excessive by the award, sale will be the ulterior process on the defaulter's failing to pay the awarded amount. I do not see why these words may not also, be, taken as authorizing the Collector to drop the sale in case his award shows that the imperative notices contained excessive demands. In any case, it does not follow that a sale held in such a case on the basis of the awarded balance will not be assailable on the ground of defect in imperative notices. There cannot be any doubt that the petition should specify the actual balance due and not what the zamindar considers to be due. This specification is very important and any error unit will be of serious consequences as all the notices shall have to repeat this as the amount claimed. Thus, if the amount claimed as due in the petition be in excess of the amount due, the sale cannot be prevented by anybody without paying the excess amount. No doubt Section 14 (second) makes some provision for the defaulter him. self to contest the claim and get the same rectified. But none else is given this right and, as has been repeatedly pointed out by the Judicial Committee, these notices are imperative not only in view of the defaulter's interest but also for the sake of many others. *
70. The fact that there are provisions for assailing the error in the course of the proceeding does not take away from the mandatory character of the particular requirement. As has been pointed out above, the power to realise his dues by the sale of the defaulter's tenure is an extraordinary power given to the zamindar. Certainly it is open to him like all other creditors to seek relief in a Court of law, get the amount due settled by that Court and then proceed to execute that decree in the ordinary man. ner. But if instead of that he desires to have resort to his extraordinary power, there is nothing unreasonable in expecting that he should take extraordinary caution also, so that he may not claim anything in excess of what may ultimately be found to be actually due by a Court of law. As has been pointed out above,
where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with it is neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right, or authority conferred and it it therefore probable that such was the intention of the Legislature.
71. In my opinion, incorrect specification of the balance due is a ground available for the reversal of the sale. Section 14 (second) in my opinion contemplates that (1) either the award should be made before the day appointed for sale, (so that the parties in. terested may, as of right, make the payment to stop the sale) or (2) if it is not possible to make'the award before that date, the investigation should be kept pending so that the parties can take steps under the second part of the clause. The section does not contemplate the making of the award on the date of sale as was done in this case. Under the law the persons interested can stop the sale as of right only by making payment on a day before the day appointed for sale. An award made after that date is made too late to safeguard this right. If the award could not be made before the day appointed for sale, the investigation should have been kept pending on the day of sale. In that case, in the event of the sale having taken place in the manner contemplated by the second part of Section 14 (second), the remedy of the defaulter would have been by a regular action for damages and for a reversal of the sale.
72. In the present case, we shall place the plaintiffs exactly in that position and see if they have made out a case for a reversal of the sale. The section does not, in my opinion, mean that in ease the sale proceeds at the instance of the zamindar and it is afterwards established that the contest of the claim was well-founded, the sale must be reversed. In our opinion, the section only jkeeps open the remedy by a regular suit but idoes not, in any way, slacken the grounds of success. Even in that suit in order to obtain a decree for reversal the plaintiff must establish a sufficient plea within the meaning of Is. 14 (first). As I have held that the accuracy in the specification of the balance is a mandatory requirement, the error established is a sufficient plea for the reversal of the sale. I, therefore, agree that these appeals should be allowed and I respectfully agree with my learned brother in the order proposed by him.
F.A. Nos. 205 and 206 of 1940.
73. The result of our decision in these two appeals is that the suits instituted by the, appellants have been decreed. The case of the appellants in their plaint was that they were in possession of the disputed putnis. They prayed for confirmation of their possession in their plaints. The learned advocate for the appellants stated before us that during the pendency of these appeals in this Court, the appellants were dispossessed by the respondents zamindars and prayed that the decrees in the two suits shall now be converted into decrees for recovery of the disputed putnis. The learned advocate for the respondent zamindars, however, contends that his clients were not in possession of the disputed putnis at the date of our judgment and, consequently, the decrees in the two suits could not be converted into decrees for recovery of possession.
74. The dispute between the parties before us now involves determination of question of fact and it is impossible for us to determine this matter on the materials on the record of the present case. If it is found by the trial Judge that at the date of the judgment the plaintiff appellants were not in possession and that the defendants respondents were in possession, the plaintiffs will recover possession of the disputed putnis from the defendants. If on the other hand, the trial Judge finds that the plaintiffs were in possession of the disputed putnis on the date of our judgment, the decrees passed by us confirming possession will stand.