Debi Pershad vs Mussamut Aklio Koer, and Others

The suit with which we are concerned in this appeal is the outcome of a sale for arrears of revenue of an ijmali kalam of 6 annas 8 pie, under the provisions of sec. 14 of Act XI of 1859. The Plaintiff, who is the Appellant before us, owned a 1 anna 4 pie share in the parent estate, the Defendants Nos. 1 to 6 held a 6-anna share, and the Defendant No. 7 a 2-anna share. In respect of these three shares separate accounts had been opened with the Collector under the provisions of Act XI of 1859, the remaining 6 annas 8 pie share being left as the ijmali kalam. The owners of the ijmali kalam failed to pay their share of the revenue, the result being that the said kalam was put up to sale. The bids offered did not reach the amount of the arrears and the result was that the Collector in accordance with the provisions of sec. 14 of the Act, declared that the entire estate would be put up for sale on a future date, unless the other recorded sharers, or one or more of them, should within ten days purchase the share in arrear by paying to Government the whole arrear due from such share. Within the ten days, the Plaintiff, the Defendants Nos. 1 to 6 and the Defendant No. 7, each came forward and paid into the hands of the Collector Rs. 18-6, that being the amount of the arrears for which the property had been put up to sale; and the Collector subsequently issued a certificate of sale in these terms--" This is to certify that Gossain Radha Krishun Dat Pandit, Gossain Chatarbhuj Dat Pandit, and Mussammat Sheolochana Koer, inhabitants of Khot Karhwa, Pargana Bal, Lala Debi Pershad, inhabitant of Dahiawan, Pargana Maujhi, and Sheo Shankar Pershad, inhabitant of Ratanpura, Pargana Maujhi, the proprietors, who have got their khata accounts in the Collectorate, purchased, under Act XI of 1859, the ijmali mehal specified below standing in the towji of the District of Saran, at a price of Rs. 18-6, Rs. 18-6, Rs. 18-6, and that their purchase made on the 28th March 1890 took effect one day after it, i.e., on the 29th of March 1890." Then the description of the property sold is given. The Plaintiff instituted this suit to recover a one-third share of the property thus purchased by him and the Defendants Nos. 1 to 6 and 7. The Defendants pleaded that the Plaintiff could only recover a share proportionate to his interest in the parent estate. The Court of first instance held that the Plaintiff was entitled to a one-third share of the 6 annas 8 pie share in question. The District Judge, however, on appeal has come to a different conclusion. He is of opinion, having regard to the conduct of the Plaintiff and the Defendants in connection with the suits which the old maliks had instituted for the purpose of setting aside the revenue sale, that it should be presumed that the Plaintiff is interested in the property purchased to the extent only of his share in the parent estate, and no more.

We are of opinion that the learned Judge has erred in the view that he has adopted. We do not think that there is anything in the conduct of the parties in the course of the proceedings in the suit mentioned, which in any way indicates that the Plaintiff is entitled not to a one-third share but to a share equal to that which he has in the parent estate.

Referring then to the certificate of sale, we desire to say that it might mean that the consideration for the purchase was three times Rs. 18-6. But perhaps that is not the right view to take, having regard to the provisions of sec. 14 of the Revenue Sale Law. There is no doubt however, as already mentioned, that each paid in Rs. 18-6; and there is no evidence on this record to show how the three sums of Rs. 18-6 were applied towards satisfaction of the arrears for which the property had been put up to sale. In the absence of anything showing the contrary, the presumption perhaps is that the Collector took from each of these three funds one-third thereof so as to make up in all Rs. 18-6, the amount of the arrears. Sec. 45 of the Transfer of Property Act lays down that "where immoveable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced" and so on. The fund that was in the hands of the Collector in this case was not a common fund, '' but they were separate funds supplied by the parties, and it would appear, from the portion of sec. 45, which we have just quoted, that, in the absence of a contract to the contrary, the parties are respectively entitled to an interest in the property in question in proportion to the share of the consideration which they respectively advanced. In this case they each advanced Rs. 18-6, and, as we have already indicated, in the absence of any evidence on the record, it should be presumed that the Collector took from each of the funds Rs. 6-2 in order to make up the arrear of Rs. 18-6, for which the property was put up to sale. But furthermore, the section goes on to say : "In the absence of evidence as to the interest in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property." Now if there is no evidence upon this record to show how the amount Rs. 18-6 was made up by the Collector from the funds which the parties respectively advanced, the presumption ought to be that each of these three parties is equally interested in the property, sold, that is to say, they should be presumed to be entitled to one-third each.

In this connection we might as well refer to a portion of sec. 14 of Act XI of 1859, which runs as follows :--"If such purchase be completed (that is to say, purchase by co-sharers) the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided for in secs. 28 and 29 of this Act, to the purchaser or purchasers, who shall have the same rights as if the share had been purchased by him or them at the sale." The words "purchased by him or them at the sale " evidently mean the purchase by him or by them jointly; and if the purchase is made jointly, it seems to be obvious that in the absence of any evidence to the contrary, each is entitled to an equal share in it. Upon these grounds we think that the judgment of the Court of first instance is right and that of the District Judge erroneous, the result being that this appeal is allowed, and the decree of the first Court restored with costs in this and in the lower Appellate Court.