KARUNAKARAN PILLAI Vs. KESAVA PILLAI
HIGH COURT OF KERALA
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(1.) This is an appeal against a judgment and decree of the Parur District Court setting aside a revenue sale. Plaintiff who is Respondent 1 in the appeal has been allowed to recover the property sold with past and future mesne profits. Defendant 2 the purchaser at the revenue sale has brought this appeal. The State who was Defendant 1 in the suit is Respondent 2 here. The circumstances that led to the institution of the suit are set out in paragraphs 2, 3 and 4 of the Trial Courts judgment in the following terms:-
The plaint property is 28 cents in Parur Pakuthy comprised in S. No. 313/3A, 2 acres 69 cents. In a family partition of 1066, the entire survey number was allotted to the share of the plaintiffs branch and mutation was effected in the name of its Karanavan, Raman Parameswaran Pillai. While thus the plaintiffs branch was in possession, a dispute arose about 65 cents in the northern portion of the said survey number, between the plaintiffs branch and another branch in the same tarwad. This led to proceedings under S.143 Criminal Procedure Code which resulted in a declaration of the possession of the rival branch. Thereupon, plaintiffs branch instituted O.S. 761/112 of the Parur Munsiffs Court, for declaration of title and recovery of possession. The Trial Court decreed the suit, while the first appellate court dismissed it. In second appeal however the High Court restored the judgment of the Trial Court.
Meanwhile in 1113, the rival branch executed a partition deed, dividing also the said 65 cents along with their admitted properties. Pursuant to it, mutation was effected for the said 65 cents in favour of Krishnan Kochunni Pillai and others of the rival branch. Tax due to Sirkar for 1115 and 1116 was defaulted. For realisation of the said arrears steps were taken under the Revenue Recovery Act and ultimately the plaint 28 cents in the western portion of the said 65 cents was sold in auction. It was purchased on 27.9.1116 for Rs. 8/- by the 2nd defendant a sisters husband of Kochunni Pillai.
The mutation and sale proceedings are impeached as irregular and illegal. The attachment, sale etc. were conducted with material irregularity and they have resulted in substantial damage to plaintiffs branch. A petition to set aside the sale, moved before the Peishkar was rejected on 20.11.1120. The annual profits from the property comes to Rs. 9/-. The property was delivered in Dhanu 1120. Past mesne profits from that date also are claimed.
(2.) Both the defendants, the State as also the purchaser contested the suit and though the sale was impeached on various grounds the lower court repelled all those grounds except one. The ground which found favour with the learned Judge was that the revenue sale was vitiated by the doctrine of lis pendens in so far as it was held during the pendency of O.S. 761/112. The learned Judge felt bound to follow the decision in Janaki Amma v. The Diwan of Travancore - 1949 Travancore Law Reports 36 - where a Division Bench composed of Krishna Pillai, C.J. and Mr. Justice Habeeb Mohamed had held that the doctrine of lis pendens applies both to voluntary and involuntary sales including revenue sales. In repelling the other grounds urged to impugn the sale the lower court not only found that there were no irregularities but also that the plaintiff was aware of the transfer of the registry in the name of the karnavan of the rival branch so early as 1114 and that he was also aware that the tax was in arrears for 1115 and 1116. Notwithstanding those findings, on the authority of the decision referred to the plaintiffs suit was allowed, the only variations made with respect to the reliefs claimed in the plaint being that the rate of mesne profits was reduced to Rs. 2/- per year and that the parties were directed to bear their respective costs.
(3.) The sole question for our decision in this appeal is whether the principle of lis pendens can be extended to affect sales by revenue authorities for realisation of land revenue assessment on the property. The rule of lis pendens is contained in S.52 of the Transfer of Property Act, 1882 and though that Act is not law in Travancore its principles have invariably been adopted by courts in that State when questions covered by its provisions came up for decision. Even in jurisdictions where the Transfer of Property Act is in force it is settled law that the section as such does not apply to involuntary sales though the principle underlying the rule embodied in the section applies to such alienations as court sales etc. The inhibition of the section is only against any of the litigant parties dealing with the property forming the subject of the litigation so as to affect the rights of any other party thereto under any decree or order which may be made therein. In Mullas Commentaries (3rd Edition) to S.52 it is pointed out at page 253 that the extension of the principle to involuntary alienations is the effect of three Privy Council cases. ILR (1885) 12 Calcutta 414; ILR (1888) 15 Calcutta 756 and ILR (1897) 25 Calcutta 179 and of an overwhelming mass of authorities both before and after the pronouncements of the Privy Council. The position regarding the application of the principle to compulsory sales for recovery of Government dues is set out with clarity in Chitaleys Commentaries on the Transfer of Property Act (3rd (1950) Edn.) at pp. 731 and 732 as follows:-
A compulsory sale for the recovery of the Government dues is sometimes free of all incumbrances under the particular law applicable to the case, and is sometimes subject to incumbrances, like an ordinary sale in execution of a decree of a Civil Court, conveying only the right, title and interest of the judgment debtor. In the former case the moment the sale takes place, the mortgage or other incumbrance is extinguished. Consequently, the sale, even though it takes place, pending a suit on the mortgage or other encumbrance, is not affected by lis pendens'. In the latter case, the sale would be governed by the general doctrine of lis pendens.;
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