Durgadas Roy vs Prasanna Kumar Santra

Das, J.—This is an appeal on behalf of the Plaintiff under Clause 15 of the Letters Patent against a decision of Lahiri J.

The facts are not in controversy and may be stated as follows. The Plaintiff was a co-sharer in touzi No. 827 of the Midnapore Collectorate and had separate accounts Nos. 2 and 4. The estate had other separate accounts. The Court of Wards was in charge of the Plaintiff''s estate and the revenue payable for the separate accounts held by the Plaintiff was duly paid. Certain other separate accounts fell into arrears in payment of Government revenue and for their default, the estate was brought to sale on March 25, 1944, and was purchased by Defendants Nos. 1 and 2. It was contended in the courts below that Defendants Nos. 1 and 2 who were respectively the gomastha and son of the defaulting proprietors Nos. 4, 17 and 18 were benamdars and a case of reconveyance was made on the further allegation that the default was made with the object of depriving other co-sharers. This case was negatived by the ultimate court of fact and has not been persisted thereafter. The case which now requires consideration is whether the sale of the entire estate including the separate accounts in charge of the Court of Wards was a nullity in view of the provisions of Section 10C(2) of the Court of Wards Act. The Plaintiff''s case was that the sale was a nullity and a declaration in that behalf was prayed for by the Plaintiff. The trial court gave the Plaintiff the necessary declaration but on appeal to the lower appellate court, the decision of the trial court was reversed and the Plaintiff''s suit was dismissed. On further appeal to this Court Lahiri J. affirmed the decision of the lower appellate court.

In this Court Mr. Chakravorti, learned advocate appearing for the Plaintiff, has contended that the sale is a nullity. The question depends on an interpretation of Section 10C(2), Sections 23(2) and 23A of the Court of Wards Act. Section 23(2) confers protection in cases where the estate or a share of the estate held by the Court of Wards is in default. The protection is limited to the exception contained in Section 23A and is subject to the provisions of Section 14 of the Revenue Sale Law. Section 23A provides for a sale of an estate or a share or part of an estate in charge of the Court of Wards for arrears of revenue accrued while under charge of the Court of Wards only if the Court certifies in writing that such sale is beneficial to the Ward. Section 10C(2) is very general in its terms and provides that except as provided for by Section 23A no property in charge of the Court of Wards shall be sold by any revenue authority under any law as long as the Court remains in charge thereof. Mr. Chakravorti contends that the provision is very general and includes a case where though the Court of Wards is not in default yet the share of the estate held by the Court of Wards is sought to be sold under the provisions of Section 14 of the Revenue Sale Law. He contends that the section was intended for the benefit of the Ward of the Court and as such should be liberally construed. If one reads Sections 10A, 10B and 1OC of the Court of Wards Act the intention is undoubtedly to give protection to the property in charge of the Court of Wards but the extent of the protection which is intended to be given by Section 10C(2) must be judged with reference to the other provisions of the Act already referred to and the provisions in Section 14 of the Revenue Sale Law. Before the enactment of Section 10C(2), the legislature in Section 23(2) clearly provided that where a share of an estate under charge of the Court of Wards was in default that share could not be sold except where the court certified u/s 23A. But if that share was intended to be reached as a result of the provisions of Section 14 of the Revenue Sale Law, on account of the default of any other co-sharers the protection ceased. The question is whether Section 10C(2) was intended to confer a large measure of protection. In my opinion, Section 10C(2) merely extends the protection previously enjoyed by the Ward of the Court in regard to sales for arrears of revenue, to cases of sales at the instance of a revenue authority for realisation of sums for which the Court of Wards is liable. The protection conferred by Section 10C(2), in my opinion, does not extend to cases where the share of the Court of Wards though not in default is sought to be made available for sale as a result of the provisions of Section 14 of the Revenue Sale Law, on account of the default of other co-sharers in the zemindary. The principle which was applied by Lahiri J. in construing Section 10C(2) and Section 14 of the Revenue Sale Law, namely, that a particular enactment controls a general enactment, should be applied in the present case. Section 14 of the Revenue Sale Act specifically deals with certain cases where the estate is brought to sale for arrears of revenue under the provisions of Revenue Sale Law. Section 10C(2) is a general law which refers generally to sales at the instance of revenue authority for payment of all Government dues. In my opinion, the provisions contained in Section 14 of the Revenue Sale Law must be held as restricting the general operation of Section 10C(2) of the Court of Wards Act and the latter sections must be read, as subject to the special provisions of Section 14. In my opinion, the decision of Lahiri J. is correct and must be affirmed.

This appeal must accordingly fail and is dismissed with costs.

SEN J. I agree with my Lord as to this order but I would like to add a few words.

In this appeal we are concerned with the application of Section 10C(2), Section 23, Clause (1) and Section 23A of the Court of Wards Act to the case of revenue sale u/s 14 of the Revenue Sale Law of the touzi of which the separate account in charge of the Court of Wards is not in default. Section 23A of the Court of Wards Act applies to a case where the separate account in charge of the Court of Wards is in default. This, therefore, has no direct application to the present case. Section 1OC(2) of the Court of Wards Act is a general section providing that except as provided for in Section 23A no property in charge of the Court of Wards shall be sold by any revenue authority under any law so long the Court remains in charge thereof. If these provisions were to prevail over other provisions of the Court of Wards Act, in my opinion, the sale of the entire estate u/s 14 of the Revenue Sale Law, while two separate accounts thereof were in charge of the Court of Wards, would be void. Section 14 of the Revenue Sale Law, however, is saved by the provisions of Clause (1) of Section 23 of the Court of Wards Act which provides that subject to the provisions of Section 14 of Act XI of 1859, every separate account shall be exempt from sale for arrears of Government revenues which have accrued while the separate account is in charge of the Court of Wards. There is, in my opinion, a conflict between the provisions of Section 10C(2) and Section 23, Clause (1) of the Court of Wards Act so far as the application of the provisions of Section 14 of the Revenue Sale Law is concerned. I am unable to agree with the proposition that if Section 23, Clause (1) did not exist Section 14 of the Revenue Sale Law would still prevail against Section 10C(2) of the Court of Wards Act. In this connection I am inclined to accept an argument of Mr. Chakravorti based on the proposition recited in Maxwell''s Interpretation of Statutes, 9th Ed., p. 171, which runs as follows:

If the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later.

Accordingly, Section 10C(2) of the Court of Wards Act being later than the provisions of the Revenue Sale Law, in my opinion, Section 10C(2) of the Court of Wards Act would prevail but for Section 23, Clause (1) of the Court of Wards Act. As between Section 10C(2) and Section 23, Clause (1), of the Court of Wards Act, the later provision will prevail according to the principle of interpretation that if there is conflict between an earlier section and a later section of the same Act, the later section must be taken to represent the intention of the legislature. Though Section 1OC(2) was added later, the Act as amended has to be considered as a whole.

The result, however, is that I agree that Section 14 of the Revenue Sale Law was correctly applied to the sale of the estate two separate accounts whereof were under the charge of the Court of Wards and that this appeal must be dismissed with costs.