MATHAI KITHO Vs. GODANANDA BRAHMANANDA BOOTHI SWAMIAR
LAWS(KER)-1955-3-12
HIGH COURT OF KERALA
Decided on March 16,1955

MATHAI KITHO Appellant
VERSUS
GODANANDA BRAHMANANDA BOOTHI SWAMIAR Respondents

JUDGEMENT

- (1.) THESE are appeals brought by different defendants in a suit for recovery of arrears of michavarom and renewal fees. There were several items of properties in the plaint schedule; and although all of them were originally demised on kanapattom by the same deed they were, at the time of the institution of the suit, in the possession of different persons. The suit was decreed, but the plaintiff was given separate decrees as regards each of the items in the plaint schedule. In each of the appeals filed in this Court the appellant therein complains against the portion of the decree relating to the property he is interested in.
(2.) THE plaintiff is Godananda Brahmananda Bhooti Swamiyar of THEkke Madham, Trichur. THE plaint properties, which are not jenmom properties, and certain other properties which are jenmom properties were outstanding on a kanapattom granted from the plaintiff's matapram and that kanapattom was renewed by Ext. A in 1077. Jenmikaram Settlement proceedings, and the suit which has given rise to these appeals was brought for the arrears of proportionate michavarom and renewal fees and other dues payable in respect of non jenmom properties comprised in the renewal deed. THE kanomdars under the document of 1077 were one Aeliyoni who is now dead, and defendant 1. By the time the suit was filed in 1121 the kanom right in respect of some of the properties had devolved on other persons by virtue of sales in execution of decrees and other alienations. Consequently there were many defendants in the suit and a good number of them entered appearance in the Court below and filed written statements, each putting forward contentions in respect of the property or properties in his possession. Defendants 5, 7, 24 and 32 in the Court below are the appellants before us. Defendant 7 is interested in plaint item 6, and has brought A. S. No. 222 of 1952 against the portion of the decree of the court below relating to that item. Defendant 5 is interested in plaint item 2, and has brought A. S. No. 273 of 1952. Defendants 24 and 32 are interested in item no. 1, which they claim under defendant 1, and have brought A. S. No. 284 of 1952. THE points raised in each of these appeals do not cover all the contentions put forward in the written statements of the appellant or appellants therein, and it is not therefore necessary to refer here to all the contentions of the parties. THEir contentions so far as they are necessary for the disposal of each appeal will be referred to in the discussion below regarding that appeal. A. S. No. 222 of 1952 According to the plaintiff's plaint item 6 is not jenmom land, and Ext. A has to be treated so far as that property is concerned, purely as a mortgage. The finding of the court below is also to the effect that item no. 6 is not jenmom property. This finding is not challenged by defendant 7. He had contended in the court below that item 6 had been sold in revenue auction on 30. 2. 1099 for the arrears of tax due in respect of that property and that as a result of that revenue sale the plaintiff's matapram had lost its right to the said item. Before the revenue sale, the patta for the property stood in the name of Aeliyoni, the kanomdar. The property was purchased at the revenue sale by one Ittyerah Ittoop. Ittyerah Ittoop subsequently sold it to Chakku Thommen, and for Abkari dues payable by Chakku Thommen the property was again sold in revenue auction in 1114 and purchased by defendant 7. Defendant 7's case is that he has become the absolute owner of item 6 by these sales and that the plaintiff's matapram has, therefore, no right to it and is not entitled to realise any dues under the kanapattom from that property. The court below repelled this contention on the ground that what was sold in the revenue auction of 1099 was only the rights of the defaulter, Aeliyoni, who was the pattadar, that Aeliyoni had only the kanom right in the property, and that defendant 7 has therefore obtained only the kanom right and nothing more in respect of item 6. In this appeal defendant 7 contends that the view taken by the Court below is erroneous and that he has become the absolute owner of the property by the revenue sales. This contention is right and has to prevail. It is admitted by both sides, and it has also been found by the court below, that at the time of the revenue sale of 1099, aeliyoni, the kanomdar, was the pattadar i. e. , the registeted holder, of the property. For purposes of the Revenue Recovery Act, the registered holder for the time being of the property is the "land holder" (See S. 1 (c)) and the defaulter contemplated in that Act is the landholder as defined in S. 1 (c ). Even if the registered holder is not the real owner of the property, for purposes of the Revenue Recovery Act he, and he alone, can be treated as the landholder or owner, and a sale after notice to him will convey not merely the rights which he in fact has in respect of the property but the full ownership of the property which has to be deemed as vesting in him by virtue of the provisions of S. 1 (c ). S. 2 of the Revenue Recovery Act provides that the land and the buildings upon it and its products shall be regarded as security for the public revenue on the land, and S. 5 provides that when public revenue due on land is in arrear such arrear together with interest and costs of process may be recovered by the sale of the defaulter's movable or immovable property or both. S. 39 enacts that all lands brought to sale on account of arrears of revenue due thereon shall be sold free of all encumbrances. The combined effect of these sections is that, notwithstanding the fact that the pattadar has in fact no right at all to the property sold under a revenue sale for arrears of tax due on it, or has only a mortgage or leasehold right in it, and the ownership of the property really vests in any other person, the revenue sale after notice to the pattadar would convey to the purchaser the full ownership over it, free of all encumbrances, and will be binding on the real owner also. By his default to have his name brought in the Revenue records as the registered holder, and by allowing the name of the person who has no right in the property or has only a mortgage or leasehold interest in it to stand in the records as the registered holder, the real owner has put forward that person as the ostensible owner of the property; and having done so, he cannot be heard to say, after he has defaulted to pay the tax on the property and after the revenue sale for the arrears of tax, that the registered holder was not the real owner of the property but only the ostensible owner and that the proceedings taken against the registered holder were not binding on him. It has been held in Thoma Varkey v. The Dewan of Travancore, XXVII T. L. J. 13. "the policy of the Revenue Act is to look up to the registry-holder for the payment of arrears of Sirkar revenue, and Government are not bound to find out the real owner. There cannot be two defaulters under the Revenue Recovery Act, one of the ostensible owner, and the other the real owner". In Mathew v. The Dewan of Travancore, XXXII TLJ P. 160 also it was held that the word "defaulter" as used in S. 5 of the revenue Recovery Act, which confers the right of sale of the defaulter's property, applies only to the registered pattadar, and that there cannot be two defaulters, one the ostensible owner and the other the real owner. The revenue sale in that case was without notice to the real owner but after notice to the pattadar. The High Court upheld the validity of that sale and dismissed the suit brought by the real owner for setting aside the sale repelling his contention that he was entitled to get notice before the sale. Dealing with a similar contention put forward in Varkey v. The Dewan of Travancore, XXXII t. L. J. 325, Abraham, J. has observed: "the next point is whether the plaintiffs or any of them was entitled to a notice before putting the property to auction. They or their predecessors were not landholders in the sense of registered-holders for the time being, or their legal representatives, for the purpose of the Revenue recovery Act. The policy of the Act is to look only to registry-holder for the payment of arrears of Government revenue, and Government are not bound to find out the real owner. Indeed it would be impracticable and hazardous to entrust the Collectors of revenue with the duty of settling disputed title of land. As it is the undoubted duty of every citizen owning land to pay Government revenue thereon, the owner who has not had the necessary entries in the revenue records made in his favour and has not paid the tax due on his land, has no reason to complain if such property is seized and sold for arrears due thereon". The High Court of Madras also had to consider this question in Zamorin of Calicut v. Sitarama (ILR VII Madras 405) and Turner, c. J. has dealt with it thus: "the material question is whether, when the patta stands in the name of a tenant, service upon him of the written demand mentioned in S. 38 is sufficient service on the proprietor. By suffering the registry to stand in the tenant's name, the proprietor, puts him forward as the ostensible owner, and as between him and the Government, the service upon such tenant must be taken to be, in law, service upon the real owner. He cannot complain that Government is in error in serving the written demand on the person whom he permitted to appear as the ostensible landowner. " In a recent Full Bench decision of this Court Eravi pillai Krishna Pillai v. Maluk Mohamed Sahul Hameed (1953 KLT 802), to which both of us were parties, it has been observed: "another important feature of a sale of property under the Revenue Recovery Act for arrears of revenue due thereon is that the sale will extinguish the rights of not only the party to the proceedings but also of all other persons who may have any interest in the property. As provided in S. 39 of the Act the property is sold free of all encumbrances. The party to the proceedings will be only the land-holder, namely, the registered holder for the time being. Such registered holder may have no real interest in the property at the time of the sale. The property might have been either sold or mortgaged to others, and if their names are not entered in the register of the Revenue Authorities no notice need be issued to them under the Act before the property is sold. " The right sold under a revenue sale for arrears of tax due on the property sold, and referred to in the sale certificate as the defaulters' right is the right of the "landholder", that is to say, it is not merely the right which the registered holder (the ostensible) owner has in fact in the property but the full right of ownership which for purposes of the Revenue Recovery Act is deemed to be with him. The rights of the real owner, freed from all encumbrances, pass under the Revenue sale to the auction purchaser- he gets the property absolutely as his free of all encumbrances.
(3.) IT follows from the above that by the Court sale of 1099 the full right of ownership in plaint item 6 passed to ITtyerah ITtoop free of all encumbrances and that thereafter neither the plaintiff nor the kanomdar had any right in the property. Ext. IX is the sale deed executed by ittyerah ITtoop in favour of Chakku Thomman, and Ext. X is the sale certificate obtained by defendant 7 when he purchased plaint item 6 at the revenue sale in 1114 for recovery of Abkari dues payable by Chakku Thomman to the Government. In the circumstances, we hold that defendant 1 was become the absolute owner of plaint item 6 and that the plaintiff's matapram has no right to it and is not entitled to get the arrears of michavarom and other dues sought to be recovered in respect of it. The suit so far as plaint item 6 and defendant 7 are concerned has therefore to be dismissed. A. S. No. 273 of 1952 This appeal relates to plaint item No. 2. The case of defendant 5 in respect of that item is that it belongs absolutely to him and that the plaintiff's matapram has no right at all to it. According to him, the property was originally puthuval land and was registered at the time of the settlement in the name of one Kandu. Kandu sold it in 1105 to defendant 5 and his brother by Ext. III, and in the partition effected between defendant 5 and his brother, the whole property was allotted to defendant 5. Defendant 5 claims that he has thus become the sole owner of the property. The plaintiff relies upon the inclusion of item 2 in Exts. A and B. the Kanom document of 1077 and a subsequent puravaippa taken by the kanomdars, and also upon certain other transactions mentioned below. Ext. II is the copy of the classification register relating to item 2. It shows that the said item was puthuval before the Settlement and that it was then in the possession of Kandu. We got down and examined the Settlement register also at the time of hearing in this court. That register shows that the property was subsequently registered in Kandu's name and patta for it was granted to Kandu at the time of the Settlement. Exts. III and IV are the sale deed by Kandu to defendant 5 and his brother in 1105 and the partition deed between defendant 5 and his brother. These documents undoubtedly support the case of defendant 5. But it cannot also be gain said that item 2 is included in Exts. A and B. According to defendant 5, the inclusion of item 2 in Exts. A and B was due either to a mistake or fraud. Both these documents were executed before the Settlement. It is significant that at the time of the preparation of the classification register the person in possession was Kandu and not any of the kanomdars, and that neither the kanomdars nor the plaintiff's matampram took any step to get patta for this property at the time of the Settlement. Ext. A itself is only a renewal of an earlier kanom deed. In 1071, before the execution of Ext. A Aeliyoni had brought a suit against Kandu alleging that he was in possession of the property as a lessee under him and praying for recovery of possession. This suit was contested by Kandu and was dismissed by the trial court which held that the lease was not true. The appeal filed against the trial Court's decree was also dismissed by the appellate court. No doubt the decision of this suit is not binding on the plaintiff's matapram as it was not a party to the suit. But from the classification register and the Settlement register as well as the proceedings in the suit just mentioned it may be safely inferred that Kandu was in possession of item 2 from before 1071, denying the title of the plaintiff's matapram and asserting that the property belonged to him. Except the inclusion of item 2 in Exts. A and B and two subsequent suit brought on the strength of Ext. A there is nothing to show that this item ever belonged to the matapram or that the matapram or its kanomdars were ever in possession of it. The kanom deed and the purvaippa are not binding on Kandu who was not a party to those documents. In 1092 the plaintiff's matapram filed a suit for arrears of michavarom due in respect of several properties and for the decree amount in that suit the kanom right in respect of all those properties was sold in auction and purchased by one mordokai. Ext. D is the delivery Kychit under which Mordokai obtained possession of all those properties in pursuance of the court sale. Subsequently in 1101 another suit was filed against Mordokai for arrears of michavarom, and in 1104 Mordokai sold item 2 to one Mathew Devassi. In 1113 Devassi appears to have executed a sale deed for this item in favour of defendant 5. Ext. H is a copy of the sale deed. In addition to Exts. A and B the plaintiff relies upon ext. H and the inclusion of item 2 in the suits of 1092 and 1101 to prove that the property belongs to the matapram and contends that defendant 5 is estopped by Ext. 11 from denying the matapram's title. From the classification register and the Settlement register there is every reason to think that the matapram had no right to item 2 and that it was included in them either on account of a mistake or by fraud. As has been stated already Ext. A itself is only a renewal of a prior kanom. The prior kanom deed has not been produced in this case, and it was before the execution of Ext. A that the kanomdar had filed the unsuccessful lease suit against Kandu. In spite of the result of that suit, the kanomdar took Ext. A with item 2 included in it. These are circumstances tending to support the defence suggestion that item 2 was included in Ext. A by fraud. To the decrees and execution proceedings in the suits of 1092 and 1101, kandu was no party. There is also absolutely no evidence in this case to show that Ext. H was executed by Devassi at the instance of defendant 5 or that defendant 5 had accepted that sale deed. According to defendant 5, Ext. H was executed by Devassi in his favour without his knowledge and consent and he has not accepted that sale deed. His case is that it was executed as part of the scheme to deprive him of the property and to fabricate evidence in support of the matapram's title. Considering the fact that Aeliyoni took Ext. A with item 2 included in it in spite of the result of the lease suit filed by him in 1071, this contention of defendant 5 is entitled to great weight. Ext. H was executed and produced before the Sub-Registrar by Devassi, and it was Devassi himself who got it back from the Sub-Registrar's Office. There is no evidence to show that defendant 5 has accepted it. We are not therefore satisfied that defendant 5 has taken Ext. H. We hold that he is in possession of item 2 under Exts. III and IV and that it belongs to him absolutely and the plaintiff's matapram has no right to it and is not entitled to get any michavarom or other dues in respect of it. The suit has, therefore, to be dismissed so far as item 2 also is concerned.;


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