Rent,.. Rs. 702-15-0
Interest,.. Rs. 16- 2-8
Cess Interest,.. Rs. 56-11-10 on
Cess,.. Rs. 1-4-9
Costs,.. Rs. 1-14- 9
,Total Its. 779- 1- 0
With regard to the defect about including the cess in the advertised balance, the putni pottah has not been produced and we do not know if under",
the engagements entered into by the putnidar the cess subsequently to be levied was to be regarded as part of the fixed rental and we find that the,
form of notice in general use which has been sanctioned by the board of Revenue included the cess in the advertised balance.,
6. Here the learned Judges were not considering the effect of the Cess Act. In that case also the learned Judges held that the notice was in,
substantial conformity with sec. 8, cl. 8, pointing out that sec. 8 has to be read with sec. 10 of the Regulation and the proper amount of arrears",
could be ascertained and verified on the date of the sale. In the present case there is no question as to the amount in arrear either of rent or of cess.,
The notice of sale that was issued was in accordance with the form prescribed by the Board and it stated that the sale would be held unless three-,
fourths of the amount together with costs and interests be deposited. The notice was therefore not defective as it was in the case of Nawab Khaja,
Ashanulla Khan Bahadur v. Hurri Churn Mazoomdar L. R. 19 I. A. 191 (1892). There the notice did not intimate to the debtor in accordance with,
the terms of cl. 3 of sec. 8 that payment of three-fourths of the balance due would prevent the sale, but it followed the terms of cl. 2 and intimated",
that the whole arrears must be paid. Their Lordships held that in those circumstances the notice was essentially defective and the sale must be set,
aside.,
7. In behalf of the Appellants further stress is laid on the demand for lakheraj cess. As regards this item the learned Judge relied on sec. 50 of the,
Cess Act according to which rent-free lands are to be deemed to form a part of the tenure within the local boundaries of which they are contained.,
It is, suggested for the Appellants that this should lead to a special proceeding for sale under the provisions of sees. 64A and 64B of the Cess Act,",
but those sections apply to the case of a demand made upon the lakherajdar by his immediate landlord. In the present case the demand is by the,
zemindar within whose estate the rent-free lands are situated. Therefore the provisions of sec. 47 would in the circumstances of this case apply to,
the arrears of lakhera case as well. Consequently the Zemindar is entitled to include such arrears in the advertised balance. The learned Advocate,
for the Appellant has relied on the case of Maharaja Bahadur Sir Jotindra Mohun Tagore v. Srimati Bibi Jarao Kumari (4). There again the,
question for consideration was whether the particular demand could be covered by a stipulation in the putni kabuliyat (4) L. R. 88 I. A. 301 s. c.,
10 0. W. N. 201 (1905). and the provisions of the Cess Act were not under consideration. The case of Kesho Prosad Singh v. Madho Prosad,
Singh 146 I. C. 1049 (1933). is materially different on facts and there also the Cess Act was Hot under consideration.,
8. Then there is an item as to costs and the same contention is raised that it could not be included in the balance under sec. 8 of the Putni,
Regulations. The amount is Rs. 1-14-9 and we are informed that it is on account of the costs of the application. The point does not seem to have,
been raised at all in the lower Appellate Court, nor very seriously in the trial Court. It is contended for the Appellants that under the third clause of",
sec. 8 a zeminder has to present a petition "" with a statement of any balances that may be due on account of the rent of the current year, etc."" The",
argument is that this refers to rent only. It seems to us however to be quite reasonable to hold that the account should include costs which are,
incidental to the demand for rent. Otherwise the position would be absurd, because the defaulter might stay the sale by depositing three-fourths of",
the amount of rent in arrears only, leaving the zemindar to recover the small amount of costs by instituting a separate suit. On the other hand sec.",
17 which provides for the disposal of the sale proceeds shows that the zemindar is entitled to be paid interest and all charges incurred in bringing,
the taluk to sale. Sees. 14 and 10 show that there is provision for investigation in case of a dispute and the zemindar has to exhibit an account of his,
proper dues just before the sale is held. It seems to us therefore that the sale was not invalid by reason of the amounts other than rent being,
included in the demand.,
9. Then comes the question as to the formalities being observed at the time of the service of notice. The learned Judge has found that the sale,
notice was published as stated by the Defendants at Shyambazar. As to the formalities it is held that the peon did not attempt to obtain a receipt,
from the defaulter but that he took the signatures of three persons, namely Nalinakshya Nag, Kali Prasanna Buxi who was the manager of the",
putnidar, and Pochai Muchi, an illiterate person, whose name was signed for him by the aforesaid Kali Prosanna Buxi. The learned Judge has held",
that, so far as Kali Prasanna Buxi is concerned, he was not called upon to sign as a manager, but that he was called upon to sign as a substantial",
person. We are not impressed by this argument and we do not think that it is likely that the serving peon appreciated the difference as between,
these two capacities. It is found as a fact that Kali Prosanna Buxi was the manager and that he did sign and there is no reason to suppose that he,
did not sign as manager. Even if his signature be taken to be only as that of a substantial person, the question would be whether there were",
signatures of three substantial person''s. We are not prepared to hold that the signing of the name of the Chowkidar by the pen of Kali Prosanna,
Buxi was a defect. In this case the General Clauses Act, sec. 3, cl. (52) does apply, strictly speaking. It is found that Pochai Muchi consented to",
his signature being put by Kali Prosanna Buxi. That we think to be substantial compliance with the requirements of the section. In any case, since it",
has been found that there has been actual service, it must be held that the essential provision of the law has been complied with and that the defect",
in the formalities in the circumstances of the case are not material. This follows the authorities Bhugwan Chunder Das? v. Sudden Ally I. L. R. 4,
Cal. 41 (1878). Maharajah of Burdwan v. Tarasundari Debt I. L. R. 9 Cal. 619 (1882) and Be joy Chand Mahatab v. Amrita Lal Mukherji ILR,
27 Cal. 308 (1899). In this view the sale is not liable to be set aside by reason of any defect in the service.,
10. The learned Judge has also pointed out that it is admitted that the putnidurs were in arrears of rent and that the Zemindar had the right to sell,
the property under the Putni Sale Law. The other amounts in the advertised balance were also not disputed and the learned Judge pointed out that,
the inclusion of these items did not make it impossible for the putnidars to deposit the amount of rent and thereby stop the sale. Sm. Khyarennessa,
Chozvdhurani v. Kumar Sat yet Bhanu Ghoshal Bahadur 34 C.W.N. 549 (1929). The appeal therefore fails on all the points and must be,
dismissed with one set of costs to be divided equally between the two sets of Respondents, who appeared in this appeal.",
Patterson, J.",
I agree.,
