XII.

deposited the amount of arrears due by the putneedars LECture to the zemindar in order to stop a sale, and applied to the putneedars (defendants) to set-off the deposit against the arrears due to them by the registered durputneedar (the plaintiff's purchase being unregistered), but the defendants refused and sued the registered durputneedars for the arrears, and the plaintiff unsuccessfully intervened, the High Court considering his payment to have been voluntary; the plaintiff then brought the present suit against his vendor, the registered durputneedar, and the putneedars to recover the money deposited, and he was held entitled to recover.

By section 14 of Regulation VIII of 1819, clause 1, if the balance of arrears remains unpaid on the day of sale the sale must proceed, and shall not be postponed or stayed on any account unless the amount of the demand be lodged. The sale may, however, on sufficient grounds be set aside in a suit against the zemindar and the purchaser. It has been held under this section that the defaulting putneedar, &c., cannot lodge the money on the day of sale. A talookdar disputing the zemindar's claim may have the claim summarily decided, but the sale cannot be stayed before such decision, except upon deposit of the amount claimed.*

By section 16 it is enacted that since under-tenures held under engagements similar to those between zemindar

1 Luckhee Narain Mitter v. Sitanath Ghose, 6 W. R., Act X, 8; In. Jur., N. S., 117, s. c.

* Luckhi Narain Mitter v. Khettro Pal Singh Roy, 13 B. L. R., 146. The Collector of Tipperah v. Goluck Churn Shaha, S. D. A. (1859), 521. See Krishna Mohan Shaha v. Munshi Aftabuddin Mahomed,

8 B. L. R., 134, and the remarks of Mitter, J., at p. 146.

LECTURK
XII.

Sale under Act
X of 1859 and
subsequent
Acts.

and putneedar have been declared not voidable for arrears of rent fixed on them in perpetuity, the person to whom rent is due must proceed under section 15 of Regulation VII of 1799; but the sale must be public. This section is repealed by Act VIII of 1865 (B. C.), section 2. This Regulation further provides, with regard to the proceeds of sale, that any person may sue to have compensation out of the surplus proceeds for the loss of his interest by the sale. If several decrees of this kind are obtained and the surplus is insufficient to satisfy all, they will be paid rateably. But a claimant who was himself in arrear is not entitled to compensation.1 Regulation I of 1820 provides that the provisions of Regulation VIII of 1819 as to periodical sales shall apply to sales of tenures of the kind described in section 8, clause 1, Regulation VIII of 1819.

By Act X of 1859, section 105, Act VIII of 1865 (B.C.), section 4, and Act VIII of 1869 (B.C.), section 59, it is enacted that "whenever a decree may be passed for an arrear of rent due in respect of an under-tenure, which by the title-deeds or the custom of the country is transferable by sale, and the judgment-creditor shall make application for the attachment and sale of such under-tenure," the Court shall give twenty days' notice of sale in the manner prescribed. But no order for sale for arrears of rent is to be made while any warrant is in force against the person or moveable property of the judgment-debtor. Any balance, which remains due after sale of the under-tenure, may, however, be realised by process against any other property.s

' S. 17.

* Act VIII of 1865 (B.C.), s. 5. Act VIII of 1869 (B.C.), s. 60. * Act X of 1859, s. 105. Act VIII of 1869 (B.C.), s. 61.

LECTURE

XII.

Stoppage of

By Act VIII of 1865 (B.C.), section 2, and Act VIII of 1869 (B.C.), section 62, "if the sum due under the decree, together with interest to date of payment, and all costs of sale. process, be paid into Court at any time before the sale commences, whether by the defaulting holder of the undertenure, or any one on his behalf, or any one interested in the protection of the under-tenure, such sale shall not take place; and the provisions of section 13 of Regulation VIII of 1819, for the recovery of sums paid by persons other than the defaulting holder of the under-tenure, to stay the sale of the under-tenure, shall be applicable to all similar payments made under this section." By Act X of 1859, section 106, and Act VIII of 1869 (B.C.), section 63, if after attachment and before sale any third party prefers a claim to be the lawful proprietor, and to have been in lawful possession of the under-tenure when the decree was obtained, the Court shall not postpone the sale unless the amount of the decree is deposited by the claimant, or security given for such amount. "Provided always that no transfer of an under-tenure which, by the provisions of this Act or any other law for the time being in force, is required to be registered in the sheristah of the zemindar or superior tenant, shall be recognised unless it has been so registered, or unless sufficient cause for nonregistration be shown to the satisfaction of the Court."

of sharer in

By Act X of 1859, section 108, and Act VIII of 1869 Sale at instance (B.C.), section 64, if a decree is given in favour of a joint estate. sharer in a joint undivided estate, dependent talook, or other similar tenure for his share of the rent of an undertenure, no order shall be made for sale of such undertenure in execution of such decree until all the judgmentdebtor's moveable property within the jurisdiction of the

LECTURE
XII.

Avoidance of incumbrances.

452

AVOIDANCE OF INCUMBRANCES.

Court has been seized and sold and proved insufficient: and even then the sale of an under-tenure, of the nature of those described in section 59 of Act VIII of 1869 (B. C.), is to be in the same manner and have the same effect as ordinary sales in execution of decrees; and therefore would pass only the right, title and interest of the judgment-debtor. By section 66 of Act VIII of 1869 (B.C.), re-enacting section 16 of Act VIII of 1865 (B.C.), "the purchaser of an under-tenure under the provisions of sections 59 and 60 of this Act, shall acquire it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement under which the under-tenure was created, or by the subsequent written authority of the person who created it, his representatives or assignees; provided that nothing herein contained shall be held to entitle the purchaser to eject khoodkasht ryots or resident and hereditary cultivators, nor to cancel bond fide engagements made with ryots or cultivators of the classes aforesaid by any holder of the under-tenure or his representatives, except it be proved in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rate would have been demandable at the time such engagements were contracted by his predecessor." This section does not apply in case of the defaulter purchasing. The purchaser who wishes to enhance the rents of cancelled under-tenures must serve the notices prescribed by section 14 of Act VIII of 1869 (B.C.).1 And the landlord, whose holding has been

Re-enacting Act X of 1859, s. 13.

sold for arrears of revenue, may still recover the arrears of rent due from his tenants at the date of sale by any process open to him except distraint.'

LECTURE
XII.

tenants.

I shall now give a summary of the principal cases on the Unregistered subject of sale for arrears of rent. We have seen that according to the cases an unregistered and unrecognised holder of a tenure cannot set aside a sale for arrears of rent made under a decree against the registered holder for arrears due. There is nothing expressed in the Acts upon this matter except the provisions of Act X of 1859, section 106, and Act VIII of 1869 (B. C.), section 63, already referred to; the Acts only prescribing registration, but providing no other penalty than is provided by the sections just mentioned for failure to register. But the point must it seems now be considered settled. An unregistered tenant who objects to such a sale may, however, proceed under section 63 of Act VIII of 1869 (B. C.) to pay the arrears if he can show under that section sufficient cause for not registering; otherwise he cannot be recognized. If he pays in the name of the registered holder he can sue to set aside a sale made after such payment.3

There has, however, been considerable difference of opinion upon the point just noticed, and it may be as well to refer to some of the cases. Thus it has been laid down, as we have seen, that the zemindar need not look beyond his registered tenant; and in any case the sale cannot be set aside for fraud on that ground alone.*

1 Act XII of 1841, s. 31. Act I of 1845, s. 30. Act XI of 1859, s. 55. 2 Sheik Afzal Ali v. Lalla Gaurnarain, B. L. R., Supp. Vol., 519; 6 W. R., Act X, 59, s. c.

3 Ib.

✦ Bhubo Tarinee Dossia v. Prosunno Moyee Dossia, 10 W. R., 304. Sadhun Chunder Bose v. Gooroochurn Bose, 15 W. R., 99.