Графични страници
PDF файл
ePub

LECTURE

XII.

444

SALE UNDER THE REGULATIONS.

under-farmer; if the tenant is a dependent talookdar, or holder of any other transferable tenure, it may be sold through the Court, and if he have a right of occupancy he may be ousted, as we have seen. And by Regulation VIII of 1819, section 3, clause 3, putnee talooks cannot be cancelled under Regulation VII of 1799, section 15, but are to be sold by public auction, and the holder of the tenure is to be entitled to the surplus proceeds, if any, beyond the rent due, subject to section 17 of the Regulation. The provisions of Regulation VIII of 1819 are the model upon which all subsequent provisions have been framed, and it will be convenient to deal with them here. By section 8, clause 1, zemindars or proprietors under direct engagements with Government may apply, as in the Regulation prescribed, for periodical sales of any tenures upon which the right of selling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure. This power was not confined to cases in which the stipulation was unrestricted as to time, but was to apply equally to tenures held under engagements stipulating merely for a sale at the end of the year in conformity with the practice theretofore allowed by the Regulations in force. By clause 2 the sale is to be on a petition,' to be presented on the 1st of Bysack, specifying the arrears due for the last year; and the sale is to take place on the 1st of Jeyt. Similarly a petition may be presented on the 1st of Kartick, and followed by a sale on the 1st of Aughran. And by section 9 the defaulter may not bid. The sale is bad if the prescribed rules are not strictly

! Petition to Collector sufficient under Act XXXIII of 1850.

AVOIDANCE OF INCUMBRANCES.

445 complied with,' and there must be an actual arrear to support the sale. But a payment into the Collectorate by a defaulter of the arrears due, without notice to the Collector or zemindar, has been held not sufficient to invalidate the sale. It has been held that a gantee tenure is not within this section.*

LECTURE

XII.

incumbrances.

Sales for rent under this Regulation have effects similar Avoidance of to revenue sales. Section 11, clause 1, provides that any talook or saleable tenure that may be disposed of under this Regulation for arrears of rent is sold free of all incumbrances that may have accrued upon it by the act of the defaulting proprietor, his representatives, or assignees, unless the right of making such incumbrances was expressly vested in the holder by a stipulation to that effect in the written engagements under which the talook may have been held. No transfer by sale, gift, or otherwise, and no mortgage or other limited assignment, shall bar the indefeasible right of the zemindar to hold the tenure of his creation answerable, in the state in which he created it, for the rent, unless the transfer or assignment is made with a condition to that effect under express authority obtained from the zemindar. By clause 2, on a sale for arrears, all leases originating with the former holder, creating a middle interest between the resident cultivators

1 Baikantha Nath Sing v. Maharaja Dhiraj Mahatab Chand Bahadur, 9 B. L. R., 87.

2

Shuroop Chunder Bhoomick v. Rajah Pertab Chunder Singh, 7 W. R., 218. See as to the scope of the Regulation, Watson v. The Collector of Rajshahye, 3 B. L. R., P. C., 48, at p. 53; 13 Moore's I. A., 160, at p. 175, s. c., and 12 W. R., P. C., 43, s. c.

'Krishna Mohun Shaha v. Munshi Aftabuddin Mahomed, 8 B. L. R., 134 (Mitter, J., diss.).

'Satkowree Mitter v. Useemuddeen Sirdar, S. D. A. (1851), 626.

[blocks in formation]

LECTURE
XII.

and the late proprietor, must be considered cancelled, unless authority to grant them should have been specially transferred. The possessors of such interests must lose the right to hold possession of the land and to collect the rents of the ryots, such right being enjoyed merely through an assignment of a portion of the defaulter's interest, the whole of which interest was liable for the rent. The section then saves the holdings of khoodkashts, and bond fide engagements with them, unless proved to be engagements for a lower rent than was demandable at the time of such engagements. Upon this section it has been doubted whether a transfer of a share in a putnee would bind the zemindar. This section being declaratory of the principles to be observed on all occasions when saleable tenures are made responsible for the zemindar's reserved rent, it is by section 12 declared applicable to talooks theretofore sold, if the sale was fair and according to the usual practice. Nothing therein contained is to prejudice any agreement, express or implied, between the purchaser of a talook and his predecessor's lessees. The fall of undertenures upon sale is declared not to apply to a private transfer by a talookdar of his own interest, nor to a public sale in execution; nor to the case of a relinquishment by the talookdar in favour of the zemindar; nor to any act originating with the former holder, other than default as aforesaid: all such operations involve only a transfer of the tenure in the state in which it may be held at the time; and the new incumbent succeeds to no more than the reserved rights of the former tenant, such as they may be,

1 Wilson v. The Collector of Rajshahye, 3 B. L. R., P. C., 48, at p. 54; 13 Moore's I. A., 175, s. c.

[blocks in formation]

XII.

and is of course subject to any restriction put upon the LECTURE tenure by his act.

On the other hand the under-tenant is allowed to stop Stoppage of sale by underthe sale. Section 13 declares that on account of the injury tenant. that may be brought upon the holder of a talook of the second degree by the operation of the preceding rules, in case the proprietor of the superior tenure purposely withholds the rent due to the zemindar, after having collected his own rent from the inferior tenants, it is necessary to allow such talookdars means of saving their tenures from ruin by such sale; and enacts (1), that when a tenure is advertised for sale under this Regulation, a talookdar of the second degree, or any number of them, shall be entitled to stay the final sale by paying into Court the amount of balance declared by the person attending on the zemindar's part on the day of sale to be the amount due. And similarly such tenant may lodge money antecedent to sale, and if the amount lodged is sufficient, the sale shall not proceed, and if the amount lodged is in excess of what is due, the excess shall be returned. (2) If the amount lodged be rent due by the inferior talookdar to the holder of the tenure advertised for sale, it shall be so stated at the time of deposit, and the amount lodged shall be deducted from any claim for rent due. (3) If the depositor's rent has been already paid, so that the deposit is an advance, it shall not be set against future rent, but shall be considered a loan to the proprietor of the tenure preserved from sale; and the talooks preserved shall be a security to the persons making the advance, who shall be considered to have a lien thereupon in the same way as if it were a loan upon mortgage, and shall be entitled on application to possession of the tenure in order to recover the advances.

LECTURE

XII.

[blocks in formation]

The defaulter shall only recover his tenure from persons so in possession upon payment of the entire advance, with interest at twelve per cent. per annum, or upon proof in a regular suit that the full amount with interest has been realised out of the usufruct of the tenure. An unregistered durputneedar may deposit the arrears under this section, and recover the amount from the defaulting putneedar or landlord and the tenant so paying may pursue the double remedy of a suit for the money paid, and of possession of the tenure as security until paid. But a purchaser at a sale in execution of an ordinary decree, and who is in possession, would not be affected by a sale for arrears due before his purchase made at the suit of his vendor's landlord, the putneedar; and therefore such a purchaser cannot recover from his vendor money paid to stop the sale for arrears, neither can a mortgagee of a durputnee, who has deposited the arrears in order to stop the sale of the putnee, recover the money so deposited from the putneedar. The same principle applies in such a case whether the deposit is made under Regulation VIII of 1819, section 13, or Act I of 1845, section 9. Where the purchaser of a durputnee being in arrears to the putneedars

3

1 Ambika Debi v. Pranhari Doss, 4 B. L. R., F. B., 77. Luckhinarain Mitter v. Khettro Pal Singh Roy, 13 B. L. R., 146. Khetter Paul Singh r. Luckhee Narain Mitter, 15 W. R., 125. But see Luckhee Narain Mitter v. Sitanath Ghose, 6 W. R., Act X, 8.

2 Prem Sookh Raee v. Kishen Gobind Biswas, S. D. A. (1849), 18. Ramshunker Raee v. Premsookh Raee, ib., 473. Ambika Debi v. Pranhari Das, 4 B. L. R., F. B., 77. Kartick Surmah v. Bydonath Saenee, 10 W. R., 205.

• Ram Baksh Chatlangi v. Hridoy Mani Debi, 8 B. L. R., 10 (note). • Annundo Chunder Banerjea v. Soobul Chunder Dey, S. D. A. (1857),

1195.

« ПредишнаНапред »