CHINNASAMI MUDALI Vs. TIRUMALAI PILLAI AND THE RIGHT HONOURABLE THE SECRETARY OF STATE FOR INDIA
TIRUMALAI PILLAI AND THE RIGHT HONOURABLE THE SECRETARY OF STATE FOR INDIA
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(1.) MUTHU Annathai Naick obtained a loan under Act XIX of 1883 to be expended in digging a well in land No. 315 held by him on patta. Land No. 105-B was also held by the borrower on patta, but it was not made collateral security for the loan under Section 7, Clause 1 (d) of the Act. As the loan was not repaid on the date on which it fell due, land No. 315 was attached and sold by Government. No one bid for it and the land was bought in by Government. On the 12 November 1895 MUTHU Annathai Naick sold land No. 105-B under a registered document (exhibit BE) to the plaintiff. In 1896 this land was attached by Government in order to realise the amount of the loan still due by the plaintiff's vendor. The plaintiff on the 25 July put in a petition to the Revenue authorities objecting to the sale of land No. 105-B on the ground that he had purchased it from the defaulter. The sale was estopped, but the land, as it appears, remained under attachment. In March 1897 the plaintiff and the defaulter put in a joint petition requesting that the patta for No. 105-B might be transferred to the plaintiff, but the Revenue Inspector ordered that this application should "remain in abeyance" as it appeared that MUTHU Annathai Naick had not completed the payment of his loan (exhibit F). Subsequently, under the orders of the Collector, land No. 105-B was sold on account of the loan due by the plaintiff's vendor and was purchased by the first defendant. The plaintiff has brought the present suit praying the Court to cancel the sale and declare that it is null and void. The lower Courts have dismissed his suit and he has preferred a second appeal here. It is clear that it is impossible to uphold the finding of the District Judge that the sale under exhibit EE was fraudulent. The Judge has arrived at this conclusion solely on the ground that the plaintiff, when he applied for transfer of the patta for land No. 105-B, suppressed the fact that Government had attached the land with a view of recovering the balance of the loan a till due by the plaintiff's vendor. The attachment had been made by the Revenue authorities and it must be held that the plaintiff, when he applied to the same authorities for transfer of patta, was entitled to assume that they were not ignorant of what they themselves had done. It is impossible to hold that any fraud has been proved. In the present case it is clear that the Collector, when he attached land No. 105-B and brought it to sale, was attempting to recover the loan granted to MUTHU Annathai Naick under Section 7, Clause 1 (a) of the Land Improvement Loans Act and not under clauses 1 (6), (c) or (d). Clause 1 (a) provides that the amount of the loan, interest, costs, &c, shall be recoverable from the borrower as if they were arrears of land revenue due by him. The question to be decided is therefore whether, when the borrower's patta land was sold under the provisions of that clause, the purchaser (first defendant) at the sale took free of all encumbrances as he would do under the provisions of Section 42 of Act II of 1864 (Madras) in case of a sale for arrears of land revenue, or, in other words, has Section 42 been extended by Section 52 of the same Act to sales for recovery of loans under Act XIX of 1883? The decision in Ramachandra V/s. Pitchaikanni I.L.R. 7. Mad. 434, is a clear authority for the negative of the above proposition unless it can be shown that there is such a difference between the wording of Section 10, Act III of 1864 (Madras) and Section 7, Clause 1 (a) of Act XIX of 1883 as to render this decision inapplicable to the present case. We are of opinion that there is no such difference. In the old Abkari Act it was provided that a Collector could proceed for the recovery of abkari arrears due in like manner as for the recovery of arrears of land revenue, while in the Land Improvement Loans Act it is laid down that arrears shall be recoverable from the borrower as if they were arrears of land revenue due by him. We cannot see any real difference in recovering arrears as if they were arrears of land revenue and proceeding for the recovery of them in like manner as for the recovery of arrears of land revenue. The District Judge is of opinion that the decision in Ramachandra v. Pitchaikanni I.L.R. 7 Mad. 434 led the Legislature to alter the form of words used in cases where it was intended that action should be taken under Act II of 1864 to recover arrears other than land revenue. This decision, however, cannot have in any way influenced the Legislature in enacting Section 7 of Act XIX of 1883, for it will be found that that Act received the assent of the Governor-General on the 11 October 1883, while the judgment reported at Ramachandra V/s. Pitchaikanni I.L.R. 7. Mad. 434, was not delivered till the following March.
(2.) FOR the foregoing reasons we must hold that the provisions of Section 42 of Act II of 1864 (Madras) do not apply to the sale of land No. 105-B by order of the Collector on account of sums due by Muthu Annathai Naick under the Land Improvement Loans Act and we accordingly allow this appeal, set aside the decrees of the lower Courts and give the plaintiff (appellant) a decree as prayed for. The second defendant (second respondent) will pay his own costs and those of the plaintiff (appellant) and first defendant (first respondent) throughout.;
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