Dua, J. - (1.) In this appeal on certificate granted by High Court of Gujarat under Article 133(1) (c) of the Constitution of India the questions raised relate to the liability of auction purchaser of property at Court sale for the arrears of municipal taxes due on the date of sale to the municipal corporation of the City of Ahmedabad which dues are a statutory charge on the property sold and of which the purchaser had no actual notice. On the question of constructive notice there is a sharp conflict of judicial decisions in the various High Courts and in the Allahabad High Court itself there have been conflicting expressions of opinion. In this Court there being no representation on behalf of the respondent the appeal was heard ex parte.
(2.) The property which is the subject-matter of controversy in this litigation originally belonged to one Haji Nur Mahammad Haji Abdulmian. He apparently ran into financial difficulties in February, 1949, and insolvency proceedings were started against him in March, 1949. By an interim order receivers took charge of his estate and finally on October 14, 1950 he was adjudicated insolvent. The property in question accordingly vested in the receivers. This property had been mortgaged with a firm called Messrs Hargovind Laxmichand. In execution of a mortgage decree obtained by the mortgagee this property was auctioned and purchased at court sale by the plaintiff Haji Abdulgafur Haji Hussenbhai. (respondent in this Court) for Rs. 22,300/-. He was declared purchaser on November 28, 1954. At the time of this purchase them were municipal taxes in respect of this property in arrear for the years 1949-50 to 1953-54 which means that the receivers had not cared to nay the municipal taxes during all these years. The property was attached by the municipal corporation by means of an attachment notice dated July 20. 1955 for the arrears of the municipal taxes amounting to Rs. 543.70 ps. As the municipal corporation threatened to sell the property pursuant to the attachment proceedings the purchaser instituted the suit (giving rise to this appeal) for a declaration that he was the owner of the property and that the arrears of municipal taxes due from Haju Nurmohammad Haji Abdulmian were not recoverable by attachment of the suit property in the plaintiffs hands and that the warrant of attachment of the property issued by the municipal corporation was illegal and ultra vires. Permanent injunction retraining the municipal corporation from attaching the property for arrears of municipal taxes was also sought. The trial Court declined the prayer for a declaration that the property was not liable to be attached for recovery of the arrears of municipal taxes. But the warrant of attachment actually issued in this case was held to be illegal and void with the result that an injunction was issued restraining the municipal corporation from enforcing the impugned warrant of attachment against the plaintiff in respect of the suit property. Both parties feeling aggrieved appealed to the District Court. The Assistant Judge who heard the appeals dismissed both of them. The plaintiff thereupon presented a second appeal to the Gujarat High Court which was summarily dismissed by a learned single Judge. Leave to appeal to a Division Bench under Cl. 15 of the Letters Patent was however granted. The Division Bench hearing the Letters Patent appeal in a fairly lengthy order allowed the plaintiff's appeal and decreed his suit holding that the plaintiff is the owner of the suit property and the charge of the municipal corporation for arrears of municipal tax is not enforceable against his property and also restraining the municipal corporation by a permanent injunction from proceeding to realise from this property the charge in respect of the arrears of municipal taxes. On appeal in this Court three main questiom were raised by Shri S. T. Desai, learned counsel for the appellant.
(3.) To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat, emptor (let the purchaser beware) applies to such purchaser. The case of the judgment debtor having no saleable interest at all in the property sold such as is contemplated by Order 21. Rule 91. C. P. C., is, however, different and is not covered by this doctrine. The second point canvassed was that there is an express provision in Section 141 (1) of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter called the Bombay Municipal Act) for holding the present property to be liable for the recovery of municipal taxes and, therefore, though the property was subject only to a charge not amounting to mortgage and, therefore, involving no transfer of interest in the property, the same could nevertheless be sold for realising the amount charged, even in the hands of a transferee for consideration without notice. Section 141 of the Bombay Municipal Act is an express saving provision as contemplated by Section 100 of Transfer of Property Act, contended Shri Desai. This submission has no merit as would be clear from a plain reading of Section 100 of the Transfer of Property Act, 1882 and Section 141 of the Bombay Municipal Act, the only relevant statutory provisions. Section 100 of the Transfer of Property Act dealing with 'charges' provides: S. 100. "Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this election applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge". This section in unambiguous language lays dawn that no charge is enforceable against any property in the hands of a transferee for consideration without notice of the charge except where it is otherwise expressly provided by any law for the time being in force. The saving provision of law must expressly provide for enforcement of a charge against the property in the hands of a transferee for value without notice of the charge and not merely create a charge. We now turn to Section 141 of the Bombay Provincial Municipal Corporation Act, 1949 to see if it answers the requirements of Section 100 of Transfer of Property Act. This section reads. Section141. "Property taxes to be a first charge on premises on which they are assessed: (1) Property taxes due under this Act in respect of any building or land shall subject to the prior payment of the land revenue, if any due to the State Government thereupon, be a first charge, in the case of any building or land held immediately from the Government, upon the interest in such building or land of the person liable for such taxes and upon the moveable property if any, found within or upon such building or land and belonging to such person; and, in the case of any other building or land, upon the said building or land and upon the moveable property, if any, found within or upon such building or land and belonging to the person liable for such taxes. Explanation.-The term "Property taxes" in this section shall be deemed to include charges payable under Section 134 for water supplied to any preemies and the costs of recovery of property-taxes as specified in the rules. (2) In any decree passed in a suit for the enforcement of the charge created by sub-section (1) , the Court may order the payment to the Corporation of interest on the sum found to be due at such rate as the Court deems reasonable from the date of the institution of the suit until realisation, and such interest and the cost of enforcing the said charge, including the costs of the suit and the cost of bringing the premises or moveable property in question to sale under the decree, shall, subject as aforesaid, be a fresh charge on such premises and moveable property along with the amount found to be due, and the Court may direct payment thereof to be made to the Corporation out of the sale proceeds." Sub-section (1) , as is obvious, merely creates a charge in express language. This charge is subject to prior payment of land revenue due to the State Government on such building or land. The section, apart from creating a statutory charge, does not further provide trial this charge is enforceable against the property charged in the hands of a transferee for consideration without notice of the charge. It was contended that the saving provision, as contemplated by Section 100 of the Transfer of Property Act, may without using express words, in effect provide trial the property is liable to sale in enforcement of the charge and that if this liability is fixed by a provision expressly dealing with the subject then the charge would be enforceable against the property even in the hands of a transferee for consideration without notice of the charge. According, to the submission it is not necessary for the saving provision to expressly provide for the enforceability of the charge against the property in the hands at a transferee for consideration without notice of the charge. This submission is unacceptable because, as already observed, what is enacted in the second half of Section 100 of Transfer of Property Act is the general prohibition that no charge shall be enforced against any property in the hands of a transferee for consideration without notice of the charge and the exception to this general rule must be expressly provided by law. The real core of the saving provision of law must be not mere enforceability of the charge against the property charged but enforceability of the charge against the said property in the hands of a transferee for consideration without notice of the charge. Section 141 of the Bombay Municipal Act is clearly not such a provision. The second contention accordingly fails and is repelled.;