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COMMON AND SPECIAL REGISTRATION. 421
purchaser possession by removing any other person and by L«ctum proclamation to the inhabitants. —
Further important provisions as to registration are also Registration of
. . .' , talookdarv and
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 Salt of tenure.
deal with this subject. Act VII of 1868 (B.C.), section 2, estates,
422 AVOIDANCE OF INCUMBRANCES.
Lecttikk 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
incumbrances. * *.
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 AVOIDANCE OF INCUMBRANCES. 423
1 Baijnath Sahu v. Lala Sital Prasad, 2 B. L. It., F. B., 1. Mangina Khatun c. The Collector of Jessore. 3 B. L. It., App., 144. Sreemunt Lall Ghose v. Shama Soondaree Dossee, 1? W. It., 276. Ram Gobind Roy v. Syud KushufTodoza, 15 W. R., 141. Har Gopal Doss v. Ram Golam Sahi, 5. B. L. R, 135. Mohan Ram Jha C. Baboo Shib Dutt Sing, 8 B. L. It., 230.
liable to enhancement up to the pergunnah or customary Lecture rates.1 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.3 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.4 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 Satysarun Ghosal r. 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.
4 Ss. 7, 8.
424 BEGULATION XI OF 1822.
Lkctckr declared by Regulation VII of 18251 to have none of — those extended rights but only to take the right, title, and interest of the former proprietor. Regulation XI of 1822, section 29, declares that, in cases in which any land belonging to a defaulter or his surety is sold for arrears of revenue, such land not being the land on account of which the arrears may have accrued, then, whether the land sold be malgoozary or lakhiraj, the purchaser only acquires the right, title, and interest of the former proprietor as in private sales or sales in execution. But in case of the sale of an estate for any part of the revenue assessed upon it, since the act of sale transfers to the purchaser all the property and privileges which the engaging party possessed and exercised at the time of settlement, free from any accidents or incumbrances that may subsequently have been imposed or have supervened thereupon, such as sale, gift, or other transfer, mortgage, marriage settlement, or other assignment, or the like, the property and privileges possessed and exercised as aforesaid being perpetually hypothecated to Government for the revenue assessed thereon, no claim of right, founded on the act of the original engager or his representative, or on any plea impeaching the title by which the said engager may have held, shall be allowed to impugn the right of the revenue authorities to make the sale, or to bar or affect the title and interest conveyed to the purchaser by the sale. If the Government shall have acquired or assumed the property of any estate subsequent to a settlement, and shall have conveyed the same to another person, such estate shall be held by the transferee subject to all just claims to which it was liable
1 Repealed by Act X of 1861.
REGULATION XI OF 1822. 425
at the time of such conveyance; and consequently any Lkctcrk person ousted by Government shall not be barred by a sale — made after such conveyance from any right he may have possessed to recover from Government the property so assumed or acquired by it. Further, a person claiming the proprietary right in a mehal, and having instituted a suit for recovery thereof, may, if a sale for arrears of the party in possession be ordered, be put into possession upon application to a Court after notice, and upon payment of arrears with interest and charges, security being also given by him under Regulation XIII of 1808, section 11, clause 4. It has been held that this section, so far as it is declaratory, is still in force as a declaration of the law, although repealed by Act XII of 1841, section I.1 The Regulation further, by section 30, in pursuance of the principle of holding the defaulter's estate answerable for the punctual realisation of the Government revenue in the state in which it stood at the time of settlement (at which time, by the dissolution of its previous engagements, Government must be considered to resume all rights possessed on the acquisition of the country, save where otherwise specially provided), enacts that all tenures which may have originated with the defaulter or his predecessors, being representatives or assignees of the original engager, as well as all agreements with ryots, or the like, settled or credited by the first engager or his representatives subsequent to the settlement, as well as all tenures which the first engager may, under the conditions of his settlement, have been competent to set aside, alter, or renew, shall be liable to be avoided and annulled by the purchaser of the estates or mehal at a sale for arrears due on account 1 Lukhuieer Khan r. Collector of llnjshahje, S. D. A. (1851), 116.