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XI.

provisions of the Acts, and upon proof of substantial injury: LECTURE and unless the contravention of the provisions of the Acts has been declared in an appeal to the Commissioner, and an action brought within a year from the sale being final and conclusive. And no person who has received any portion of the purchase-money shall contest the legality of the sale; but these provisions do not prevent an action being brought for damages. The former proprietor may also, notwith-· standing the sale, recover the arrears which were due to him from the tenants on the latest day of payment, by any process which would have been open to him except distraint."

1

shares of an

In addition to these provisions, Act XI of 1859 provides Registration of for the registration of shares of an estate so as to avoid sale estate. of it. It is enacted by section 10 that, when a recorded sharer of a joint estate held in common tenancy desires to pay his share of Government revenue separately, he may make a written application to the Collector specifying his share. Notices are then to be given, and in the absence of objection a separate account is to be opened. By section 11 if such share consists of a specific portion of the land of the estate, the boundaries, extent, and sudder jumma must be specified in the application. If any objection is raised respecting the applicant's share, or his right thereto, it must be referred to a Civil Court."

By section 13 whenever the Collector shall have ordered separate accounts to be opened for any shares of an estate,

Act XII of 1841, s. 25. Act I of 1845, s. 24. Act XI of 1859, s. 33.

' Act XII of 1841, s. 33. Act I of 1845, s. 30. Act XI of 1859, 8. 55.

'S. 12.

LECTURE

XI.

Resale on default by purchaser to pay purchasemoney.

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if the estate becomes liable to sale for arrears, the share only from which, according to the separate accounts, an arrear of revenue may be due shall be first put up to sale. But the excluded shares shall still constitute one integral estate, the share sold being charged with its portion of the jumma. And if the highest bid for the share shall not equal the amount of arrears due thereon, the whole estate shall be sold, unless the other recorded sharers within ten days purchase the share in arrear by paying the whole arrear due from such share. If they purchase they obtain the same rights as if the purchase was made at the sale. By section 15, if any recorded proprietor or co-partner of an estate deposit with the Collector money or Government securities with an agreement, pledging the same to Government as security for the jumma of the entire estate and authorising the Collector to apply the same to payment of any arrear that may become due from the estate, then, in case of arrears not being paid before sunset of the latest day of payment, the Collector may apply the deposit in payment, and the estate shall be exempt from sale so long as there is a sufficient deposit; and the deposit shall be exempt from attachment, except in execution of a decree of a Civil Court. The deposit may at any time be withdrawn.1

This Act also provides for a resale in case the first purchaser makes default in payment of the purchasemoney the first purchaser being liable upon a resale to any difference in price, the deficiency being leviable as an arrear of revenue. It also provides for giving the

'S. 16.

2 Ss. 22, 23.

COMMON AND SPECIAL REGISTRATION.

421

purchaser possession by removing any other person and by proclamation to the inhabitants.

LECTURE

XI.

talookdary and

tenures.

Further important provisions as to registration are also Registration of contained in this Act. By section 38 it is enacted that the other similar following rules shall be observed for the registration of talookdary and other similar tenures, created since the time of settlement, and held immediately of the proprietors of estates, and of farms so held for terms of years. Section 39 provides for two sets of registers, the common and the special: common registration protects tenures and farms against any auction-purchaser; and special registration against Government also. The Civil Court cannot order registration, and it may be cancelled at the suit of a person wronged.1 Special registration may be annulled by Government in a suit on the ground of fraud and injury to the revenue. A bond fide purchase for value of a tenure or farm shall not be avoided by reason of such fraud, but shall be liable to a rent which would have been fair and equitable at the time of registration; such rent to be fixed by the Collector."

Act VII of 1868 (B.C.) and Act II of 1871 (B.C.) further Sale of tenures not being deal with this subject. Act VII of 1868 (B.C.), section 2, estates. and Act II of 1871 (B.C.) extend the provisions of Act XI of 1859 to the sale of "tenures" not being "estates:" that is, to all interests in land, whether rent-paying or lakhiraj, except estates and all fisheries which by grant or custom are transferable, whether resumable or not, or whether the right of selling or bringing them to sale for arrears of rent has been specially reserved in any

1 Ss. 47, 48. * S. 50.

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LECTURE

XI.

incumbrances.

instrument or not. An "estate," on the other hand, is any land or share in land subject to the payment to Government of an annual sum in respect of which the name of a proprietor is entered on the Government register, or in respect of which a separate account has been opened under section 10 or section 11 of Act XI of 1859.

Under these Acts, sales are not valid if there was no arrear actually due.1

Avoidance of We come now to consider the position of a purchaser at a sale for arrears of revenue. Regulation XIV of 1793, section 28, merely provides that the lands purchased shall not be liable in the hands of a purchaser for arrears due before the sale. Regulation XLIV of 1793, section 5, however provides, that when the whole or a portion of the lands of a zemindar or other actual proprietor is sold for arrears of revenue, all engagements by such proprietors with dependent talookdars whose talooks are situated in the lands sold, and all leases to under-farmers and pottahs to ryots (except under sections 7 and 8) shall stand cancelled from the day of sale; and the new proprietor shall be entitled to demand the pergunnah rates from dependent talookdars and ryots, and cultivators of lands farmed and not farmed, in the same way as the former proprietor might have done if such cancelled agreements had never existed. It has been held that this section cancelled farming leases, but kept alive the tenures of talookdars; these only being

1 Baijnath Sahu v. Lala Sital Prasad, 2 B. L. R., F. B., 1. Mangina Khatun v. The Collector of Jessore, 3 B. L. R., App., 144. Sreemunt Lall Ghose v. Shama Soonduree Dossee, 12 W. R., 276. Ram Gobind Roy v. Syud Kushuffodoza, 15 W. R., 141. Har Gopal Doss v. Ram Golam Sahi, 5. B. L. R., 135. Mohan Ram Jha v. Baboo Shib Dutt Sing, 8 B. L. R., 230.

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XI.

liable to enhancement up to the pergunnah or customary LECTURE rates. The Judicial Committee of the Privy Council have expressed considerable doubt as to whether this section is now in force." Regulation III of 1796, by section 3, declares that section 5 of Regulation XLIV of 1793 extends to the cancelling wholly the leases of those under-farmers, a part only of the lands included in whose leases may be sold for arrears. This last provision is now repealed by Act XXIX of 1871. Regulation V of 1812, section 4, after reciting section 5 of Regulation XLIV of 1793, provides that a purchaser shall not annul existing leases within the year in which the sale may have taken place on the ground that such leases were evidently collusive, without a summary suit under Regulation VII of 1799. And section 9 provides that a tenant shall not be bound to pay an enhanced rate to a purchaser at a revenue sale without a written engagement or notice, although liable to enhancement. The rates to which the tenants may be enhanced are the pergunnah rates; or if none, the rates payable for land of a similar description in the places adjacent; or if the leases of a whole village or local division are liable to be cancelled, the new rate shall not be higher than the highest rate paid during the three previous years.1 These sections (7, 8 and 9) are repealed by section 1 of Act X of 1859. A purchaser at a sale in execution is

1 Khajah Assanoollah v. Obhoy Chunder Roy, 13 Moore's I. A., 317, at p. 325.

Ranee Surnomoye v. Maharajah Sutteeschunder Roy Bahadoor, 10 Moore's I. A., 123, at p. 143. Raja Saty sarun Ghosal v. Moshes Chunder Mitter, 2 B. L. R., P. C., 23. Rajah Lilanund Singh Bahadoor v. Thakur Munarunjun Singh, 13 B. L. R., 124.

* See Harington's Analysis, Vol. II, 106.

+ Ss. 7, 8.

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