Zamindar of Pachipenta vs Maharajah of Jeypore

This case arises out of a petition to the Government of Madras which was referred to this Court under Rule 31 of the Ganjam and Vizagapatam

rules under Act XXIV of 1839 for the administration of justice and collection of revenue in Ganjam and Vizagapatam. The Maharajah of Bobbili

obtained a mortgage decree against the Zemindar of Pachipsnta for a sum of about Rs. 2,75,000 which directed the sale of the mortgaged

property in case of default of payment within the time fixed in the decree. The mortgaged property comprises 73 villages in all, 69 of them being

situated in the Agency tracts of Vizagapatam subject to the jurisdiction of the Collector and Agent to the Governor and the remaining 4 in the non-

agency portion of the Vizagapatam District and subject to the jurisdiction of the District Court. The defendants in the suit having committed default

in the payment of the decree amount the decree holder took steps to bring the mortgaged villages to sale. The four villages not comprised in the

agency tracts were first brought to sale by the Agent to the Governor. The subject matter of the petition to the Government related to an alleged

serious error in the sale certificate granted by the Agent to the purchaser in the auction sale held by the Court namely the Maharajah of Jeypore.

Briefly the complaint was that the certificate stated that the 69 villages together with the hamlets forming a portion of them were brought to sale by

the District Court of Vizagapatam and the 69 villages situated in the agency were subsequently included in the sale while in fact the hamlets were

not sold but only the 69 main villages excluding the hamlets. The purchaser contended that the hamlets were in reality brought to sale by the Court.

The Agant to the Governor dismissed the application for the rectification of the alleged mistake and the only question for our decision is whether as

a matter of fact, there is any real mistake in the sale certificate.

Before dealing with the merits we may dispose of a preliminary objection raised by Mr. B.N. Sarma the learned vakil for the respondent. He

contends that no petition lay to the Government against the order of the Agent to the Governor because, he says that the Agent''s order must be

treated as one refusing to review an order passed by his predecessor in the office, Mr. Turning, on 2nd Ma}7 1908, that the application for the

rectification which he says must be treated as an application for review of that order was put in, long after the three months allowed for review

applications that Mr. Parsons who disposed of the application had no jurisdiction at all to review Mr. Turning''s order and that no petition would lie

to the Government against Mr. Parson''s order dismissing the petition for review. It is clear that the whole of this argument proceeds on the

application to this case of the rules contained in the CPC which is admittedly inapplicable to the Agency tracts. It is, however, unnecessary to

consider whether the particular rules of the CPC having a bearing on the point should be applied to this case or not as it is perfectly clear in our

opinion that the applicaton to the Agent to the Governor should not be regarded as one for review of Mr. Turning''s order. As a matter of fact Mr.

Turning passed no order on 2nd May 1908, deciding what was comprised in the sale held by the Court and what the terms of the sale certificate

should be. On that day Mr. Turning dismissed an application of the judgment-debtor''s requesting that the sale should be set aside on the ground of

certain irregularities. It appears that on the same day the Ministerial Officer of the Court proposed a a sale certificate as the application for setting

aside the sale had been dismissed. On the draft certificate we find an office note ""for approval."" As the certificate was subsequently issued we may

take it that the agent approved the draft. It is this fact that is relied on as a judicial order determining what were the exact properties sold by the

Court and what the contents of the certificate should be. It is absolutely impossible to uphold this contention. It is the duty of a Court when sale has

been confirmed to grant a sale certificate to the purchaser. But in merely drawing up a certificate to be given to the purchaser there is no judicial

order passed binding on any party. If a question be raised as to what the certificate should contain on account of a dispute between the parties and

the question is adjudicated upon by the Court, the order passed by the Court would of course be a judicial order. There was no such order in this

case and the petition to rectify the alleged mistake in the sale certificate cannot therefore be treated as one for the review of any judicial order. The

order dismissing the petition for rectification was of course a judicial order. Under Clause 31 of the Agency Rules ""all petitions against the

proceedings of the Agent must in the first instance be submitted to Government ""It has been held by this Court in Sri Sri Sri Vikannadeo

Maharajapulam Garu v. Sree Neeladevi Pathamadha Dhevi Garu ILR (1902) M. 266 that a petition would lie to the Government to revise orders

of the Government Agent in execution proceedings under Rule 31 although that section does not in terms lay down that a petition would lie against

the Agent''s orders on the petition. See also Maharaja of Jeypore v. Neeladevi ILR (1900) M.L.J. 151. We overrule the preliminary objection.

Proceeding now to deal with the merits of the petition we have no hesitation in holding that the Agent intended and purported to sell the whole of

each of the 69 villages in question including the hamlets attached to each. It is admitted that the decree for sale did comprise the, hamlets. The

mortgaged property was practically the whole of the Zeroyiti villages of the Kemandari of Pachipenta as well as the inams belonging to the

Zemindar and the forests of the of the Pachipenta Zemindari. 73 villages are enumerated in the decree and the Schedule gives the boundaries ""for

the whole of the Pachipanta Zemindari."" The entire argument for the petitioner is based on the fact that the boundaries given in the application for

the execution of the decree for sale do not comprise the hamlets attached to each of the villages and that the latter are excluded from the sale by

the boundaries. It is not pretended that the decree-holder intended to bring only a portion of the mortgaged properties to sale. The argument

evidently is that, as a fact, the boundaries do not include the hamlets and that the auction purchaser is bound by the actual boundaries mentioned in

the application which were also inserted in the proclamation. It may at once be stated that the order for sale stated that the villages mentioned in the

execution application should be sold. The proclamation of sale copied the boundaries given in the execution application as also did the sale list. It is

therefore argued that it must conclusively be taken that nothing more than what was comprised in the boundaries was intended to be sold. No

enquiry has been held by the lower court as to whether the contention that the boundaries actually mentioned would exclude the hamlets is well

founded or not. If the petitioner''s contention that the boundaries given for each of the villages must be regarded as coaclusively determining what

was sold it would of course be necessary to direct an enquiry to determine whether they comprised the hamlets or not. But in the view we take of

the case it is unnecessary to do so. It is admitted that the extent given in the application for execution and in the subsequent proceedings, of the

villages to be sold, the income of each of those villages and the Peish-cush or Government assessment payable on them all follow the description in

the decree which admittedly included the hamlets. The decree holder requested the Court to sell the villages as a single lot. See his petition, dated

16th July 1907. The debtor requested that the villages should be sold separately. There was then no question that each village with its hamlets was

to be sold. The decree-holder seems then to have been directed to state the boundaries of each of the villages. There evidently was some difficulty

in doing so. The decree-holder put in a petition on the 16th October 1907 justifying the boundaries given by him. He said ""the boundaries given to

the villages by the judgment debtors and their men as contained in the registered Muchilikas were given and they cannot question their correctness

now. Further they did not venture to give correct boundaries even."" He at the same time protested against the sale of the villages separately. It is

quite clear from the above petition that the decree holder who presumably had no direct knowledge of the boundaries gave the best description he

could then relying on the boundaries contained in documents taken by the judgment debtor from his lessees in the course of his management of his

estate. It is quite certain that what the decree-holder intended to sell was the villages included in the decree. The whole Zemindari consisted of 73

villages, 69 of which were to be sold by the Agent. This fact was well-known to the parties to the suit and there can no doubt that intending

purchasers understood that the villages well-known by their names were to be sold as a whole. It is admitted that the hamlets are attached to and

formed portions of the villages and we entertain no doubt that the hamlets were not excluded from the sale. The Court finally decided that the

villages should not be sold separately. But apparently no change was made in the sale proclamation by omitting the boundaries of single villages

and giving only a single set of boundaries for the whole Zemindari as was done in the decree. The judgment debtors in their petitions, dated 20th

March 1908 and 26th March 1908 fully admitted that the whole of the Zemindari was being sold. The sale commenced on the 20th and was

concluded on the 26th March 1908. In their petition of the 26th they state that ""the present Zemindari of Pachipenta more fully described in the

proclamation of sale, was advertised for sale on the 20th March 1908."" In the petition of 20th March 1908 it is said ""that the whole of Agency

portion of the Pachipenta Estate has been proclaimed to be put to auction on 20th March 1908 in execution of the above decree."" There cannot

be a shadow of doubt that the judgment debtors fully understood that the hamlets were included in the sale and that their belated application for the

rectification of the certificate was merely a desperate attempt to secure some portion of the Zemindari for their family. We may note that in the sale

proclamation published in the ""Madras Mail"" it was distinctly stated that the whole of the Zemindari was to be sold. The petitioners cannot now be

permitted to assert that considerable portions of the villages were not brought to sale. We are unable to agree with Mr. K. Srinivasa Aiyangar, the

learned vakil for the petitioners that there is any hard and fast rule that the boundaries must be taken to be the sole determining factor in deciding

what was intended to be sold. Where there is a conflict between the boundaries and measurements more importance would no doubt be ordinarily

attached to the boundaries. But this is only because parties generally pay more attention to the boundaries than to the measurements of property

intended to be conveyed. The question in every case is what was the intention in that case. Where the boundaries are indefinite the measurements

assume more importance. In this case the important factor in the description is the name of the village. In forest tracts villages are known by well-

understood names and both the boundaries and measurements are often vague. The rules applicable for the determination of the identity of the

property conveyed have been laid down in Lord v. The Commissioners for the City of Sydney (1859) 12 P.C. 473.The most important authorities

on the question are collected in Durga Prasad Singh v. Rajendra Narain Baghi (1909) 37 Cal. 293 by Doss, J. The learned Judge observes that

the ordinary canon of interpretation of a deed or grant, when there is a conflict between the description of the boundaries of the land conveyed and

the description of the quantity unquestionably is that the description of the boundaries, if it is precise and accurate, dominates the description of the

quantity. See X''Llewellyn v. East of Jersey (1843) 11 M.& W. 183 Jack v. MIntyre (1845) 12 Clause 151 Cowen v. Tin filt Ltd. (1898) 2 Ch.

551 Mclnner v. Walker (1889) 2 Ch. 309. On the other hand there is a supplementary canon equally well established, though instances of its

application are much less frequent than those of the other, that if the description of the boundaries is vague and uncertain, it yields to the description

of the quantity: See Harid v. Siaby (1867) L.R. 1 P.C. 436 Mellor v. Wabmisley (1905) 2 Ch. 164 Home v. Stunber (1902) A.C. 454 etc.

These two canons are in fact illustrations of and may be summed up in a more general principle that where there are two conflicting descriptions

of the subject matter of a grant, or two conflicting parts of the same description that which is the more certain and stable and the least likely to have

been mistaken or to have been inserted inadvertently, must prevail, if it sufficiently identifies the subject-matter. This, again, is not a rule of law and

hence infallible in its character, but a mere rule of construction, which serves as a safe and almost infallible guide in determining the intention of the

parties, which is the touchstone of all true interpretation. Indeed, it is all controlling and predominates over all the elements of description of the

subject matter."" In the case before the learned Judge both the boundaries and the quantity were precise and definite but there was a gross

divergence between the quantity specified and the quantity found to be included within the definite boundaries. It was held that the intention in the

particular case was to convey the quantity mentioned, within the boundaries. See also Kumar Rameshar Malia y. Ram Tarak Hazar (1902) A.C.

454.

We have no doubt that everybody in this case understood that the predominant factor of the description was the name of the village. As already

stated the extent, the Government assessment, the income, all referred to the whole village as mentioned in the decree. The division of the whole

Zemindari according to taluks and the villages included in each taluk as described in the decree was also followed. It is also admitted that in the

description the forest income of the whole Zemindari was taken into account. It was argued that whatever might have been the intention the

description in the sale certificate must not contain any words not to be found in the sale proclamation and that the question what was contained in

the latter should be left over and should not be taken into account in determining the contents of the sale certificate. This was apparently the view

taken by the District Judge of Vizagapatam who allowed the sale certificate to be rectified with regard to the 4 villages under the jurisdiction of his

Court. We are unable to uphold this contention and we are unwilling, in a case where there can be no possible doubt of what was intended to be

sold to leave open a matter which is sure to be made an occasion for future disputes. We, therefore, confirm the order of the Agent and dismiss the

petition with costs.