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456 INTEREST PASSED BY SALE.
Licctdrk ordinary decree against A and B, and purchased by C and — D in equal shares: and in 1274 D's share was sold in execution of an ordinary decree to E, who thus acquired half of A and B's right, title and interest, C having the other half: but no change of names was made in the zemindar's books, the zemindar having however received rent from C and D, who were described in the receipt given to them as auction-purchasers. After E's purchase a rent suit was instituted against A and B, and an ex parte decree was obtained, and the talook sold, and bought by F, under a certificate that F had purchased A and B's right, title and interest, and F was put into possession. C and E then sued D and F to have it declared that the plaintiffs were entitled to the talook, and for possession, on the ground that the rent suit was fraudulent. It was held that only the right, title and interest of the judgmentdebtors A and B could be sold, and that consequently nothing passed.1
In some cases, it appears to be laid down that at a sale for arrears against the former tenant the tenure passes; while in others it is held that only the former tenant's right, title and interest passes.2 In the latest case upon the subject, the plaintiffs purchased a transferable tenure at a sale in execution of an ordinary decree, but before confirmation of the sale the zemindar sold the tenure in a suit for arrears against the registered tenants, and the plaintiffs did not deposit to stay the sale. It was held that the plaintiffs could not afterwards set aside the sale. The decision is put
1 Dowlut Qazi Chowdry v. Moonshee Munwar, 12 B. L. R., 485 (note); see p. 492.
• Compare Rajkishore Dutt r. Bulbhuddur Misser, S. D. A. (1859), 3 89, and Waned Ali c. Sadiq Ali, 12 B. L. R., 487 (note).
INTEREST PASSED BY SALE. 457
by Chief Justice Couch upon the ground that " the holding Lkcthrk or interest which has been created by the lease" passes — under such a sale; and he argues that if this is not intended when it is said the "tenure" is to be sold, there was no need for the provision, because the right, title and interest of a judgment-debtor could be sold under an ordinary decree. But with great submission, I would venture to point out that the provisions "for the sale of an under-tenure for arrears of rent prescribe a different mode of sale from the ordinary process of sale in execution and expressly give a different effect to such sale, since they entitle the purchaser to avoid incumbrances: and if the mere provision that the "tenure" should be sold sufficed to pass the entire interest, in whomsoever vested, as argued by the Chief Justice, there would seem to have been no necessity to provide that incumbrances might be avoided, since to use the words of the Chief Justice the "tenure" means "not the right or interest of any person in the land, but the holding which has been created by the lease." In the case under notice, however, the plaintiff would not have been entitled to succeed as being an unregistered holder, if the cases before referred to are correctly decided: so that it would seem that what fell from the Chief Justice as to the meaning of the term "tenure" was not strictly necessary for the decision.1
A sale duly made under the provisions of the Rent Acts entitles the purchaser to avoid incumbrances upon the tenure as provided in section 66 of Act VIII of 1869 (B.C.). Still the tenure is not expressed to be hypothecated for the rent, but only the produce2 If the defaulting tenant himself
458 ASSIGNMENTS OF REVENUE.
Lkctcrk is the purchaser he cannot take advantage of section 66 to — avoid his own acts.1 Before Act VIII of 1865 (B.C.), the lease must have expressly reserved the right of sale for arrears to entitle the purchaser to avoid incumbrances." The sale itself does not cancel the incumbrances, but only gives the purchaser a power to do so; of which he may elect to avail himself, or which he may lose by not exercising* Assignments of The considerations of the rights arising out of assignments
revenue and Do O
the resumption 0f revenue will now complete our subject. I have already dealt with this branch of my subject and have brought down the law upon the point to the time of the Permanent Settlement.4 I shall therefore proceed to trace the subsequent legislation, which commences with Regulation XIX of 1793; a Regulation re-enacting and amending the Regulations of 1st December 1700, which embodied the law on the subject at the time of the Decennial Settlement. Regulation XIX of 1793 recites the right of the ruling power of the country to a certain proportion of the produce of every beegah of land, and that a grant by a zemindar of land free of revenue is void. But that notwithstanding: many such grants had been made, both by zemindars and officers of Government, on the pretence of applying the VALID REVENUE-FREE GRANTS. 459
1 Meheroonissa Bibee v. Hur Cham Bose, 10 W. R., 220.
■ Mohima Chunder Dey v. Gooroo Doss Sein. 7 W. R., 285. Shahabooddeen r. Futteh Ali, B. L. R., Supp. Vol., 646; 7 W. R., 260, s. c. Brindabun Chunder Chowdhry v. Brindabun Chunder Sircar Chowdhry, 8 W. R., 507; L. R., In. App., 178, s. c. Satkouree Mitter r. Useemuddeen Sirdar, S. D. A. (1851), 626. Meheroonissa Bibee r. Hur Churn Bose, 10 W. R., 220. Meer Jnsimuddin r. Sheikh Mansur Ali, 6 B. L. R., App., 149; 15 W. R., 11, 8. c. Forbes r. Baboo Lutchmeeput Singh, 10 B. L. R., 139.
* Gobi nd Chunder Bose, c. Alimooddeen, 11 W. R., 160. Modhoo Soodun Koondoo v. Ramdhun Gangolee, 12 VV. R., 383.
4 See Lecture VIII.
produce of the land to religious or charitable purposes. Lecrim* That the British Government had adopted the principle that — grants previous to the accession to Dewanny accompanied with possession should be held valid. But that as no complete register of exempted lands had been formed, and as farmers and officers of Government still continued to make extensive grants, dating them or registering them as before the accession to the Dewanny; it is enacted, by section 2, Revenue-frea
J' "grants made
clause 1, that all grants for holding land free of revenue, Ac,oret1?ig5 made before 12th August 1765, by whatever authority, and whether by writing or not, shall be deemed valid, provided the grantee actually and bond fide obtained possession of the land so granted, and that it has not since been subject to payment of revenue. By clause 2, if the land is found to have been so subject to .payment of revenue for less than twelve years, but the Court is doubtful of the authority of the officer who subjected the land to such payment, the Governor-General in Council shall decide the question. By clause 3 the Courts are not to adjudge any person, not being the original grantee to be entitled to holdr exempt from the payment of revenue, land now subject to the payment of revenue, under a grant before the accession to the Dewanny expressly for the life of the grantee; or if not so expressed, or there is no writing or none forthcoming, then if the grant, from its nature and denomination, shall be proved to be for life only. By clause 4 heirs are not to succeed under such grants; and where the grant is silent, it must be proved to be hereditary to entitle the heirs to succeed. If, however, one or more successions have taken place, the Governor-General in Council shall declare whether revenue is to be paid. By clause 5 holders of life grants cannot transfer or mortgage beyond their own lives.
460 GRANTS REQUIRING CONFIRMATION.
Lkcturk The next class of grants dealt with consists of those — made since 12th August 1765 and before 1st December
grants made 1790, the date of the consolidated Regulations upon the
since 12th ° r
August 1765 subject. By section 3, clause 1. all grants between these dates
and before 1st J J > e>
H.gc0ember by any other authority than the Government are void unless confirmed by Government, and doubts as to the authority of any officer confirming such grants are to be dealt with as before directed.1 An exception out of this class is made, by clause 3, in favour of grants by the Provincial Councils before 1178, B. S., and, by clause 4, of grants before that period, whether for life or otherwise, if not of more than ten beegahs the produce of which is bond fide appropriated as an endowment on temples, or to the maintenance of Brahmins, or other religious or charitable purposes; and also of such grants made before the Dewanny. By section 4 the grantees or possessors of revenue-free lands alienated before 1st December 1790, are still proprietors of the lands, with the same right of property as is declared to be vested in proprietors of estates or dependent talooks (according as the land exceeds or is less than one hundred beegahs as specified in sections 5, 7 and 21), subject to revenue. That revenue is to be half the usual amount when the lands are held under grants made before 11782 By section 6 the revenue which may be assessable on lands not exceeding a hundred beegahs, whether in one or more villages, and alienated by one grant before 1st December 1790, shall belong to the person responsible for the discharge of the revenue of the estate or dependent talook in which the lands may be situated, notwithstanding anything in section 8 of Regulation I of 1793; and the person
1 Ql. 2. • S. 5.