We find that a somewhat similar view has been taken by this 1870 QUEEN V. 135 MOOKERJEE. We, therefore, consider the conviction was founded on an RAM CHANDRA illegal order; and that the conviction as well as the original order of the Deputy Magistrate ought to be set aside, and the fine, if paid, restored. [APPELLATE CIVIL]. Before Mr. Justice Bayley and Mr. Justice Markby. HAR GOPAL DAS AND ANOTHer (Defendants) v. RAM GOLAM SAHI (DEFENDANT). * Partition, Expenses of—Ameen, Remuneration of-Lieutenant-Governor-Board of Revenue-Commissioner-Collector-Reg. XIX of 1814-Act XI of 1838-Act XI of 1859, ss. 5 and 33. On 12th June 1867, some of the proprietors of an estate applied to the Collector for a partition under Reg. XIX of 1814. On the same day, the Collector issued a notice to all the shareholders, including the plaintiff in this suit, calling upon them to come in within one month, and shew such cause, and offer such objections, &c., as they should think fit. It did not appear that the plaintiffs did come in or did anything upon this. Similar applications were made by other shareholders. On 19th August 1867, the Collector drew out a tabular statement, purporting to be in pursuance of section 4, Regulation XIX of 1814. In it was a column giving the shares into which the expenses of the partition were to be divided. On the same day, a notice was issued to the proprietors, ordering them to pay their respective quotas of the expenses accordingly. It was said by the defendants that the apportionment was confirmed by the Commissioner on the 20th January 1868. On the 6th March 1868, it was ordered by the Collector that a proclamation should be issued in accordance with paragraph 4 of section 5 of Act XI of 1859, directing the plaintiffs, as defaulters in two sums of rupees 251-3-2 and 9-9-6, to pay the Government revenue. On the 28th March, such proclamation was issued accordingly. Subsequently, one of the plaintiffs came in, and offered to pay all that was then due and outstanding. His application was rejected; and on the same day, the 8th April, the sale proceeded, and the whole interest of the plaintiffs was sold for rupees 16,900. The plaintiffs Regular Appeal, No. 271 of 1869, from a decree of the Officiating Subordinate Judge of Tirhoot, dated the 28th August 1869. (1) 1 B. L. R., S. N., 27. 1870 appealed to the Commissioner, but their appeal was dismissed. The plaintiffs, thereHAR GOPAL fore, brought a suit against the purchasers and the Collector for recovery of the property and for cancelment of the sale. DAS v. RAM GOLAM Held, that the sale was void. There was no arrear of Government revenue justifying a sale under Acts XI of 1838 and XI of 1859, section 5. There could be no arrear until demand after sanction by the Board of Revenue and by the LieutenantGovernor of the estimate of expenses prepared by the Collector, and fixed by the Commissioner. The Board must give its sanction in each case, and the defendants failed to show that it had done so. But even if the Commissioner had power to finally determine the amount and date of payment, it was not shewn that he had done so, or supposing that he had, that any fresh demand had been made upon the parties liable. Per Bayley, J.-The completion of the partition is not necessary under Act XI of 1838 before the amount of unpaid expenses can become an arrear realizable by sale. Semble. The Government need not give its sanction in each case, but a "general" sanction will be sufficient. Baijnath Sahu v. Lala Sital Prasad (1) followed. Mr. R. T. Allan and Baboo Rames Chandra Mitter for appellants. Mr. R. E. Twidale and Baboo Gopal Lal Mitter for respondents. THE facts of the case are fully stated in the judgments of the Court. BAYLEY, J.-Baboo Har Gopal Das and Hansraj Sahu are (defendants) appellants, versus Ram Gopal Sahi and others, (plaintiffs), and the Collector (a defendant), respondents. The plaintiff sued for declaration of right and for possession of various shares in Mauzas Dhoondhee Pursoram, Koshra, and Chorah; Chuck Mahamood, Molkudhwa, and Juggudispore, appertaining to a Government rent-roll talook, named "Charraoh," and to cancel a sale by the Collector, held on the 8th May 1868, to realize the fees of a Batwara Ameen. It is alleged by the plaintiffs that certain co-sharers in a fractional share of the first of the above villages, viz., Dhoondhee Pursoram, applied for a batwara, or partition, unknown to the plaintiffs, and paid the Ameen's fees. It is admitted by the plaintiffs that they did not pay the balance of the fees, and that the sale took place for the realization of such balance. The cause of action is stated to (1) 2 B. L. R., F. B, 1. have arisen on the 10th August 1868, the date of the confirma 1870 tion by the Commissioner of the sale, for cancellation of which HAR GOPAL the plaintiffs bring this suit. The first allegation in the plaint is that the procedure under Act XI of 1838 has not been followed, and that the sale is therefore illegal. The second allegation is that, as the Ameen's fees could not be deemed an arrear due till the batwara should have been completed, which this batwara had not been, the sale was null and void, as there could be no legal sale when there was no legal arrear. The third allegation is that, when the sale took place, there was no such arrear due as is contemplated by Act XI of 1838, inasmuch as the sum due was tendered before the sale, and accepted by the Collector in the first instance; but, notwithstanding this, the sale was subsequently held. The fourth allegation of the plaintiff is that, as the applicants for the batwara were Gavind Sahaye and others who represented only a fractional share of one village, and were so separately recorded in the Collectorate, the Ameen's fees should not have been called for or treated as an arrear due from other proprietors. The fifth allegation is that the share of each individual proprietor should have been adjusted and recorded, and the demand for the fees of the Ameen made accordingly, and that only the individual who did not pay could be treated as liable for an arrear; as this procedure against each individual has not been adopted, the notice passed on a different principle, and the amount of balance calculated on the same principle, and the notifications setting them forth, together with the sale proceedings, are all illegal. Har Gopal Das and Hansraj Sahu, the purchasers at the sale, plead in answer: firstly, that the sale was held in accordance with the law and the rules prescribed by the Board of Revenue; secondly, that the Collector's sale proceedings and notices were in accordance with the Collector's own Collectorate records, according to which the Collector was bound to act; thirdly, that the main pleas as to the illegality of the sale, with reference to the provisions of Regulation XIX of 1814, and Act XI DAS บ. RAM GOLAM 1870 DAS v RAM GOALM of 1838, were not taken before the Commissioner, and conseHAR GOPAL quently, under section 33, Act XI of 1859, could not be allowed to prevail in a regular suit; fourthly, that Act XI of 1859 provides that, when the Batwara Ameen's fees are once fixed, and are not paid, they shall be realized as an arrear of revenue by sale of the defaulter's estate on the rent-roll; and that, under Act XI of 1838, the completion of the batwara is by no means a condition of the arrear accruing so as to justify a sale; fifthly, that the Collector, after the last date fixed for payment, has a discretion to refuse or to receive the sum due up to the time of sale, and is not legally required to accept payment after a week of the last day fixed for payment (in this case, 28th March 1867); sixthly, that Mauza Dhoondhee Pursoram is not a separate estate on the Collector's rent-roll, but a component part of Mehal No. 2101 on that rent-roll; that, under such circumstances, Gavind, as co-parcener of a portion of that village, was also a co-parcener of the whole of the estate No. 2101; that, under these circumstances, the estate was liable to be sold on the default of Gavind, or any other recorded proprietor, to pay the Government revenue, and that an unpaid demand for arrears of batwara fees was a demand realizable by law in the same way as arrears of Government revenue are; seventhly, that the notices were legal, and plaintiff had full cognizance of the demand and of the impending sale, as he tendered payment before the sale. The statement of the Government pleader for the Collector defendant was that the Government did not wish to defend the suit. The Subordinate Judge, Baboo Bhupati Roy, in a careful judgment, has fully considered the pleadings. He states the points for decision to be :— "First.-The powers of the Collector to fix the expenses of an Ameen employed to effect a partition, and to call upon the proprietors of the joint estate, other than the applicants for batwara, to pay the amount before the estimated expense receive the sanction, in conformity with Act XI of 1838, and to levy the same as arrears of revenue before the division was completed." "Second.—The authority of the Commissioner to sanction the probable expense, without reference to the Government of Bengal." On these questions, the Subordinate Judge decides as follows:-"The plain object of the Legislature, as is apparently clear from the preamble of the Act, was to repeal section 15, Regulation XIX of 1814, and to remedy the mischief then complained of. Section 15 alluded to was to the effect that an authorized expense, viz., percentage on the jumma of the estate was to be allowed to the Ameen; a one-third of the above percentage was to be advanced to the Ameen, before the commencement of the work; one-third on the work being half completed; and the remainder on the completion of the division." In repealing that section, Act XI of 1838 thus provides :-" It shall be lawful for the Board of Revenue, with the sanction of the Government of Bengal, to fix the expenses of an Ameen employed to effect a partition, and to cause the same to be levied from the parties concerned in the same manner as arrears of revenue, at such periods and in such proportions as the Board may think fit." The Subordinate Judge then goes on:-"The question that then remains to be solved is whether or not the demand was an arrear. I have in the first place been able to show that it was no demand at the time, as the probable expense was not fixed and determined by the Board in conformity with Act XI of 1838. It necessarily follows that there was no arrear to justify the Collector to issue notice under section 5. It was argued that the Collector, having estimated the probable expense, appointed a day for its payment, and the amount not being paid on the day specified became an arrear. This argument, I observe, is entitled to no credit, inasmuch as the Collector had no power to call upon the proprietors to pay the expense before it was fixed and determined by the Board." "In the course of argument, it was urged that the Commissioner of Revenue in certain matters enjoys the power of the Board, and therefore the Commissioner of Patna was competent to sanction the expense to be incurred for the division of the estate. To support this argument, the pleader could not point out any law authorizing the Board to transfer to the 1870 HAR GOPAL v. RAM GOLAM |