PONNIAH NADAR THIRUMANI NADAR Vs. STATE
LAWS(KER)-1955-7-2
HIGH COURT OF KERALA
Decided on July 12,1955

PONNIAH NADAR THIRUMANI NADAR Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE plaintiffs are the appellants. THEy have brought the present suit on behalf of their joint family. Plaintiffs 1 to 3 are the sons of the 5th defendant whose brothers are defendants 6 to 8. All these parties are stated to be members of an undivided Hindu family governed by mitakshara Law. THE plaint property belonged to this joint family and was under the management of one Eanakulamuthu Nadar who was the father of defendants 5 to 8. He had mortgaged this property in the year 1107. THE 4th plaintiff and the 4th defendant are stated to have taken assignments of the Mortgage right relating to one-half share in the property. Eanakulamuthu Nadar had taken an abkari contract under the State and the amounts due from him in that connection had fallen into arrears in the years 1106 and 1107. For the recovery of such arrears, the State took out proceedings under the Revenue Recovery Act and the suit property was sold in public auction on 30. 4. 1118. THE auction was confirmed in the name of the 2nd defendant who happened to be the highest bidder, the auction amount being Rs. 469-9 chs. After the auction was thus confirmed in his name he transferred his rights to the 3rd defendant. THE plaintiffs have impeached the entire auction proceedings as being vitiated by illegalities and irregularities. THE sale is impeached as being void. THE main defects urged are that the auction was conducted without any proper demand notice followed by a proper attachment as required by the relevant sections of the Revenue Recovery Act and the attachment and proclamation were all conducted in the year 1118, i. e. , several years subsequent to the notices of demand issued to the defaulter Eanakulamuthu Nadar. THE attachment and the proclamation also proceeded on the basis that Eanakulamuthu Nadar was alive at that stage while as a matter of fact he had died in the year 1114. After his death his legal representatives were not brought on record and they were not given any notice regarding the sale proceedings. On these allegations the plaintiff sought to have the sale set aside. Defendants 1 to 3 resisted the suit and maintained that all the steps leading up to the sale were duly taken as required by law and the sale is not liable to be set aside for any of the reasons stated in the plaint. It was further contended that the mortgage referred to in the plaint is not a real transaction and that it was brought into existence by Eanakulamuthu Nadar with the fraudulent intention of defeating the claim of the State on account of the arrears of Abkari dues. THE trial court after considering the evidence adduced by the parties reached the conclusion that no grounds have been made out by the plaintiffs to set aside the auction held on 30. 4. 1118. Accordingly the suit was dismissed.
(2.) IN the nature of the present suit the validity of the mortgage under which the 4th plaintiff and the 4th defendant are claiming certain rights does not strictly arise for consideration. If the auction held on 30. 4. 1118 under the Revenue Recovery Act is found to be valid, the auction-purchaser will undoubtedly get a valid title to the property purchased by him at such auction. Hence all that is necessary to be considered and decided in this case is only the question whether auction held on 30. 4. 1118 is void or is liable to be set aside for all or any of the reasons stated by the plaintiffs. This question has to be considered in the light of certain facts proved by the evidence on record about which there is no dispute between the parties. Such facts are the following: The Thandaper for the plaint property stood in the name of Eanakulamuthu Nadar the ancestor of plaintiffs 1 to 3. IN connection with the Abkari contract which he had taken the dues payable to the state had been left in arrears by him. For recovery of such arrears the State proposed to sell the plaint property by invoking the provisions of the Revenue recovery Act. Accordingly demand notices under S. 23 (a) of the Act were issued to the defaulter calling upon him to pay up the arrears due from him within seven days from the service of such notices served on him, and also intimating him that in case of default his property would be attached and sold for the recovery of such arrears. Exts. II and III are two such notices issued to him. From the endorsement on the back of the these notices it is seen that the notice Ext. III was served on the defaulter Eanakulamuthu Nadar on 15. 4. 1107 and that the other notice Ext. II was served on him on 7. 6. 1112. The demand under these notices was not honoured by him and yet no further steps were taken in pursuance of these notices during the next few years. IN the meanwhile eanakulamuthu Nadar died on 10. 5. 1114. This fact is proved by Ext. E the death certificate issued by the authority appointed under the Births and Deaths registration Act. There is also the evidence given by Pw. 2, the widow of eanakulamuthu Nadar that he died in the year 1114. The names of his legal representatives were not entered in the Thandaper relating to the suit property at any subsequent stage even up to the date of the auction of the property. Eanakulamuthu Nadar himself was shown as the Thandaper-holder of the property in all the records relating to such auction. The suit property was attached only in the year 1118 for the recovery of the arrears of Abkari dues which had been demanded as per the notice Ext. II. Exts. IX, X and XVI are the notices issued on 31. 1. 1118 and under which the attachment was effected. The person who was to pay up the arrears for which the attachment was thus effected was mentioned in all these notices as Eanakulamuthu Nadar. Subsequently the property was proclaimed for sale and Exts. I, IV, V and VI are the notices dated 28. 3. 1118 regarding the proclamation. IN these notices also Eanakulamuthu nadar was mentioned as the defaulter and as the owner of the property proposed to be sold. The auction was held on 30. 4. 1118. Ext. VII is the auction list and it shows that the 2nd defendant was declared as the purchaser of the property for the highest bid amount of Rs. 470. The sale was duly confirmed. Ext. XIV is copy of the delivery list under which the property was put in possession of the auction-purchaser. The question is whether the sale evidenced by Ext. VII could be accepted as a valid sale under which the title to the suit property passed on to the 2nd defendant. The sale was conducted for recovery of a debt due to the State by way of Abkari dues which Eanakulamuthu Nadar had left in arrears. Under the provisions of the Abkari Act the State could recover such arrears by the sale of the defaulter's property by resorting to the procedure prescribed by the Revenue Recovery Act. The essential pre-requisites of a valid sale under the Revenue Recovery Act have been considered in all their relevant aspects in the Full Bench decision of this Court in Krishna Pillai v. Sahul hameed,1953 KLT 802. One such condition is that a proper notice of demand should be issued under S. 23 (a) of the Revenue Recovery Act and served on the defaulter calling upon him to pay the arrears due from him. It has been ruled in that case that a sale held without the issue and service of such a notice will be void. This conditions has been satisfied by the sale impeached in the present case. The second condition to be satisfied is that the property of the defaulter should be attached strictly in accordance with the procedure prescribed by S. 24 of the Act. Regarding this provision also it has been ruled that the sale held in contravention of the mandatory provisions of the section will be null and void. S. 24 of the Act is in the following terms: "the attachment of immovable property shall be effected by affixing a notice thereof to some conspicuous part of the land or building to be attached by the Tahsildar in person or Proverthicar acting under his written authority or through any other official appointed by the Division peishkar and authorised by him in writing for the purpose. The notice shall specify the amount of revenue with interest, and land on which and the date from which it is due, and the party in arrear, and shall set forth that, unless the arrear, with interest and expenses, be paid within the date therein mentioned, the land or building concerned will be brought to sale in due course of law. The notice of attachment shall be affixed in some conspicuous part of the Taluk and Proverthi Cutcherries and shall also be published by beat of tom-tom on the immovable property attached. The publication shall also be reported to the Division Peishkar". Excepting the last direction regarding the sending up of a report to the Division Peishkar, all the other directions in the Section have been held to be mandatory the violation of which would render the sale void. Exts. IX, X and XVI are the notices affixed in token of the attachment of the suit property prior to the sale. The position taken up by the learned Advocate appearing for the auction-purchaser is that the requirements of S. 24 of the revenue Recovery Act have been fully satisfied by the attachment effected in the manner stated above. The learned Advocate for the appellant on the other hand contends that the notices under Exts. IX, X and XVI issued on 31. 1. 1118 purported to be notices to Eanakulamuthu Nadar who had died as early in the year 1114 and that this in itself is a vital defect nullifying the attachment. This contention was sought to be met by arguing that there is no direction in s. 24 for the issue of a notice to the defaulter and that therefore the mention of Eanakulamuthu Nadar in the notices Exts. IX, X and XVI as the defaulter, even though he had died 4 years earlier, cannot affect the validity of the attachment. No doubt the issue and service of a notice similar to the notice of demand contemplated by S. 23 (a) is not provided for under S. 24. At the same time it is obvious from S. 24 itself that the notice to be affixed in token of the attachment of the property is intended to be a notice primarily to the defaulter himself and secondarily to all persons interested in the property attached. One of the conditions to be satisfied by such a notice is that it shall specify that unless the arrears with interest and expenses be paid within a date specified in the notice, the property attached will be brought to sale in due course of law. This is clearly a direction to the defaulter and unless he is made aware of this direction in the notice it will not be possible for him to comply with the direction and to avert the threatened sale. The amount of arrears due has been specified in Exts. IX, X and XVI and then there is a direction that the party should appear before the Taluk Office within three days and pay up such arrears. There can be no doubt that this was intended as a direction to Eanakulamuthu Nadar whose name was mentioned in these notices as the defaulter. What was purported to have been attached as per these notices was the defaulter's rights over the property on the date of the attachment. But as a matter of fact the defaulter Eanakulamuthu Nadar had ceased to have any rights in the property from the moment of his death. All his rights in the property had devolved on his legal representatives. If the property had to be attached and sold for a debt due from their predecessor-in-interest they should have been brought on record in place of the deceased defaulter and then the necessary legal steps taken. The defects pointed out in respect of Exts. IX, X and XVI are also present in the proclamation notices Exts. I, IV, V and VI issued on 28. 3. 1118. These notices were also primarily directed against eanakulamuthu Nadar who was mentioned as the defaulter. This is obvious from the express direction contained in these notices that if the defaulter desires to pay up the arrears he should appear in the Taluk Office within thirty days of the auction and should pay the full amount due from him. All the notices Exts. IX, X, XVI, I, IV, V and VI are therefore fundamentally defective in so far as these notices were primarily directed against a dead person. This by itself is a vital defect rendering the auction held in pursuance of these notices absolutely void. In an involuntary sale whether in execution of a decree of a competent court or whether under the provisions of the Revenue recovery Act the title to the property could vest in the auction-purchaser only if the auction is held with the title holder on record and with notice to him. Law recognises no proprietory rights in a dead person. All such rights owned by him in his property pass on his death to his legal representatives. The title which is thus vested in them can be divested only under proceedings to which they are parties. In the present case the legal representatives of eanakulamuthu Nadar who died in the year 1114 were not made parties to any of the subsequent proceedings which culminated in Ext. VII sale in favour of the 2nd defendant. The attachment, the proclamation and the sale were all conducted on the basis that Eanakulamuthu Nadar continued to be the owner of the property. The sale certificate Ext. VII expressly states that what was sold in auction and bid by the 2nd defendant was the property owned by Eanakulamuthu nadar. It follows therefore that whatever title he had over the property on the date of the auction could alone pass to the 2nd defendant under Ext. VII. Under law Eanakulamuthu Nadar had no title in the property on the date of the auction. Thus the sale evidenced by Ext. VII is a nullity and under such a sale the 2nd defendant did not acquire any title to the suit property.
(3.) THE effect of a sale held under the Revenue Recovery act in similar circumstances came up for consideration in Marukkolandayammal v. Secretary of State, AIR 1932 Mad. 664 and there it was ruled that all the proceedings conducted after the death of the defaulter and with his name alone on record and without the prescribed notices being given to his legal representatives after bringing them on record are void. To the same effect is the ruling in Thiruvengadam v. Koolai AIR 1942 Mad. 230. THE learned Advocate for the respondent had drawn our attention to the contrary view taken in Hari prasad v. Lal Behari, AIR 1940 Pat. 328. That was a case which arose under the bihar and Orissa Public Demands Recovery Act (Act IV of 1914 ). Dhavle, J. , in the curse of his leading judgment in that case observed that the failure to bring on record the legal representatives of the certificate-debtor who died after attachment but before the sale is no more than an irregularity and does not affect the validity of the sale. With all respect we have to differ from this view. It may also be mentioned that Harries, C. J. and Manohar Lall, J. who were the two other learned judges who decided the above case expressly stated that they were not prepared to subscribe to the view expressed by Dhavle, J. , that the failure to bring on record the legal representatives of the certificate-debtor before the sale does not affect its validity. It was also pointed out by them that the question did not really arise for decision in that case. Thus the decision in Hari Prasad v. Lal Behari, AIR 1940 Pat. 328 cannot be accepted as an authority in support of the position contended for by the learned Advocate for the respondent. We are definitely of the view that the sale held with the dead man's name alone on the record has no effect on the title to the property which had already become vested in his legal representatives. Such a sale is void in the eye of law and it is not necessary to have it set aside within any prescribed time limit. THE legal representatives of the deceased debtor lose the title to the property only if the auction-purchaser is able to dispossess them and to hold the property adverse to them for the full period of 12 years so as to perfect his own title. In the present case, defendants 2 and 3 cannot claim to have perfected title to the property in such a manner because the plaintiffs have brought the present suit within five years from the date of the sale Ext. VII and within two years of the delivery of the property as evidenced by Ext. XIV. THE plaintiffs are therefore entitled to a declaration that Ext. VII sale is void and that they are entitled to ignore the sale as also the delivery effected on the basis of that sale and to be in possession of the suit property as belonging to their joint family. On the question whether the auction-purchaser did really get possession of the property as per the delivery effected under Ext. XIV dated 20. 6. 1121, there is dispute between the parties. The position taken up in the plaint is that the plaintiffs had possession even on the date of the suit. On the allegation that they apprehended that the 3rd defendant who has taken an assignment of the rights of the 2nd defendant under the sale certificate ext. VII might dispossess them they had prayed for a permanent injunction restraining the 3rd defendant from taking possession of the property. But no temporary order of injunction to that effect appears to have been passed in favour of the plaintiffs, and as such there was no legal impediment against defendants 2 and 3 asserting possession of the strength of delivery Ext. XIV dated 20. 6. 1121. The normal presumption is that actual possession passed as stated in Ext. XIV. This presumption has not been rebutted by any reliable and independent evidence. The 3rd defendant in his written statement has asserted that the 2nd defendant obtained possession on 20. 6. 1121, that such possession was transferred to the 3rd defendant and that at the time of the assignment executed by the 2nd defendant in favour of the 3rd defendant, possession of the property was also given to the assignee. In view of such an assertion made by the 3rd defendant it has to be found that possession of the property is with him. Such possession has to be deemed to be wrongful in view of the finding that the auction evidenced by Ext. VII is void and that title to the property did not pass under it. For an effective and final adjudication of the disputes between the parties it has become necessary to pass a decree in favour of the plaintiffs directing them to recover possession of the property from the 3rd defendant with mesne profits. In view of the stand taken by the plaintiffs in this suit such mesne profits can be decreed only from the date of the suit onwards. As regards the rate of mesne profits there is no evidence in the case and hence we think that 6 per cent interest on the auction amount of Rs. 470 may be fixed as the rate of annual mesne profits.;


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