ROY MOTHOORANATH CHOWDRY, ROY KISTONATH CHOWDRY, and Roy Respondents.* On appeal from the Sudder Dewanny Adawlut of IN this case, the suit was brought by the Appellant 8th Feb, 1867. XI. of 1796, sec. 4, pro Ben. Reg. vides that, certain speciafter taking fied proceedings, the Magistrate is to order the attachment of any land or other real property, held by a person charged with a criminal offence, who may evade the Magistrate's process by flight or concealment ; by requiring the Collector, if the absentee be a proprietor of land or a Sudder Farmer, paying revenue immediately to Government, to hold the Assessor:-The Right Hon. Sir Lawrence Peel. VOL. XI. Q 1867. Punchannogram in the Zillah Twenty-four PergunJUGGOMOHUN nahs, and to obtain the reversal of a Magistrate's BUKSHEE Order of possession under Act, No. IV. of 1840, ROY MOTHоO- made in favour of one Gopeemohun Mitter, under a sub-lease by the registered lessee and the Respondents. V. RANATH CHOWDRY. The facts of the case were as follows: In the year 1841, one Roy Bykantnath Chowdry, since deceased, the elder brother of the Respondents, entered into a settlement with Government for a lease, subject to the payment of the Government revenue assessed thereon, of the holdings, Nos. 28, 31, 39, with other lands; and obtained a Pottah thereof from Government in his sole name; and he was registered in the Collector's records as sole proprietor thereof, and so continued sole registered proprietor up to the time of the attachment and confiscation by Government of the lands in question. It appeared that in the year 1854, Roy Bykantnath land or farm in attachment until further notice, and prescribes the measures to be taken by the Collector. Section 6 enacts, that "Should the absentee neglect to attend for a period of six months after the lands have been ordered under attachment, the Magistrate is to report the case to the Governor-General in Council, who will pass such order upon it, and upon the future disposal of the lands, as he may judge proper." A. held a Sudder farm, part of Government Khas Mehals, paying revenue directly to Government. Although 4. was the sole registered tenant, yet he was a member of a joint undivided Hindoo family. A. having been charged with a criminal offence, absconded in order to avoid the process of the Foujdary Court, when the Governor-General, under the provisions of Ben. Reg. XI. of 1796, confiscated the lands, and afterwards sold them by auction: Held First, that as the Regulation is highly penal, it must be strictly construed, and in the absence of any express provision for the case of joint proprietors of land, or persons jointly holding a Sudder farm, it could not be assumed that the Legislature intended to authorize the confiscation of any other property than the share of the absconding absentee. Secondly, that it was not competent to the Government, under that Regulation, in the circumstances of the property being held by members of a joint undivided Hindoo family, to sell more than the fractional share and interest of the delinquent absentee, and that the fact of the lands being registered in the sole name of A. made no difference. Thirdly, that a sale under Regulation XI. of 1796, does not carry with it the consequences of a sale for arrears of public revenue, by sweeping away all sub-tenures or incumbrances made by the defaulter. 1867. JUGGOMOHUN v. RANATH CHOWDRY. Chowdry, being charged in the Foujdary Court with wounding one Jaffray, resisted the process and orders of that Court, and finally absconded to avoid the jurisdiction of the Court and legal consequences of Roy MoтHOOhis acts. The result was, that, on the 3rd of September, 1854, the above holdings, with other immoveable property held in the name of Roy Bykantnath Chowdry, were attached by the Collector of the District, and confiscated by the order of Government. Afterwards, on the 21st of March, 1855, a sale was ordered by Government of these lands, and a public notice of the intended sale published by the Collector. The Respondents presented a petition to the Collector, in which they claimed to be entitled to a beneficial interest in the whole of the lands, alleging that they jointly enjoyed the rents derived therefrom with Roy Bykantnath Chowdry, as brothers and members of the same joint family, and praying that the share or interest of Roy Bykantnath Chowdry might be alone sold. This petition was rejected by the Collector, and on the 27th of April, 1855, the holdings, Nos. 28, 31, 39, with the other lands, were put up to public auction by the Collector, and were described as having been, up to the time of confiscation, the sole property of Roy Bykantnath Chowdry, and sold, subject only to the payment of the Government revenue assessed thereon, to one Thakoordos Bannerjee, as the highest bidder, for the sum of Rs. 4,690; and Bills of sale of the same were accordingly executed on the 9th of May, 1855, by the Collector, in favour of the purchaser, who directed possession to be given to him. The Respondents presented a petition to the Commissioner of Revenue by way of appeal from the v. RANATH CHOWDRY. 1867. Order of the Collector, and alleged that the same JUGGOMOHUN was irregular, inasmuch as the entirety of the lands BUKSHEE had been sold instead of the right and interest ROY MOTHOO- alone of Roy Bykantnath Chowdry therein, and that certain notices alleged to be required under Ben. Reg. VII. of 1825 had not been served; and prayed that the Petitioners' rights might be saved, and the interest of Roy Bykantnath Chowdry alone sold by sending notice of the sale again. The Commissioner affirmed the Order of the Collector, and declared the legality of the sale of the entire property, which he thereby confirmed. The Respondents appealed to the Sudder Board of Revenue against the decision of the Commissioner; but the objections of the Respondents were overruled by the Order of the Sudder Board, on the ground that the Respondents had no right to the lands in question; and the purchaser was confirmed in his possession. In the month of October, 1855, one Gopeemohun Mitter set up a claim to the holdings and lands under a lease, dated the 29th of January, 1851, to him by Roy Bykantnath Chowdry and the Respondents, of 12 beegahs, 4 cottahs, 15 chittacks, 3 gundahs, and 3 cowries, including the lands in question, for a term of fifteen years, at the yearly rent of Rs. 125; stating that he had given a counterpart lease and had enjoyed the profits. Disputes as to possession having arisen between the purchaser and Gopeemohun Mitter, proceedings were had before the Magistrate, who ordered the lands to be put in possession of Gopeemohun Mitter. On appeal this Order was confirmed by the Zillah Judge. Subsequently, on the 12th of September, 1855, the purchaser mortgaged the lands to one Baboo Ram 1867. BUKSHEE v. ROY MOTHоO- CHOWDRY. Rutton Roy, to secure the repayment of a sum of money he had borrowed from the Baboo. On the JUGGOMOHUN 25th Assar, 1263, B.E. (8th July, 1856), the purchaser, being unable to repay the mortgage money, and the lands being worth considerably more than the amount borrowed thereon, sold the lands to the Appellant for the sum of Rs. 7,325, and also his right to the mesne profits for the time he had been kept out of possession. The The present suit was then brought by the Appellant in the Court of the Principal Sudder Ameen of Zillah Twenty-four Pergunnahs. The suit was brought in the first instance against Gopeemohun Mitter and Thakoordoss Bannerjee, as Defendants; but by a supplemental plaint (in consequence of an objection for want of parties taken by the answer of Gopeemohun Mitter) the Respondents, and Sreemutty Mirnomoee, alias Juggut Mohunee Dossee, widow of Roy Bykantnath Chowdry, who was then deceased, were made Defendants to the suit. original plaint stated, that the suit was brought for reversal of the Order of possession made in the proceedings before the Magistrate, and to set aside the lease of Gopeemohun Mitter, and to obtain possession of beegahs 1. 3. 8. 10 of land of holding, No. 28, and of chittacks 7. 15 of land of holding, No. 31, and of beegahs 6. 17. 15. 10 of land of holding, No. 39, aggregating beegahs 8.1.15.15; of land of Mouzah, Baliaghatta Dihee Shoora; and to recover possession of a Bazaar and wasilat during the period of dispossession. The plaint alleged, that the Defendant, Gopeemohun Mitter, was a servant of Roy Bykantnath Chowdry, and submitted, |