N KRTSHNAIH SETTY Vs. GOPALAKRISHNA

JUDGEMENT

(1.) This is an appeal by certificate against the judgment of the High Court of Mysore in a Second Appeal. It arises out of a suit filed by respondents 1 and 2 (who will hereafter be referred to as plaintiffs) for a declaration that the sale held in execution of the decree obtained by the appellant (who was the 9th Defendant in the suit) in O. S. No. 31 of 1937-38 against their father and other members of their family was void ab initio. O. S. No. 31 of 1937-38 had been filed by the present appellant on the basis of a promissory note executed as already mentioned, by the father of the plaintiffs and other members of that family. In execution all the sixteen items of properly belonging to the family were sold. The sale was in pursuance of an attachment before the judgment, made on 25th September, 1937. The suit was subsequently decreed. In the suit the only plea taken was that the defendants were agriculturists entitled to the benefit of the Mysore Agriculturists' Relief Act, 1928. The plaintiffs filed the suit for a mere declaration because they continued in possession of the properties which had been sold in execution and purchased by defendants 10 and 11 in the suit and subsequently purchased by the appellant. The Trial court decreed the suit. It should be mentioned that the suit was filed on 14-5-1952. The plaintiffs were born respectively in the years 1944 and 1950. On appeal the District judge held that the sale was void but allowed the appeal on the ground that the plaintiffs were not born on the date of the sale. A division Bench of the Mysore High Court allowed the Second Appeal and restored the judgment of the Trial Court.

(2.) The main question for decision as to whether the execution sale was void ab initio depends on the interpretation to be placed on section 14 of the Mysore Agriculturists' Relief Act, which reads as follows:

(3.) We are in agreement with the learned Judges of the High Court that the view taken by the district Judge that as the plaintiffs were not born on the date of the sale they cannot challenge its validity is wrong. A void sale, as we have already held the sale in execution of the decree obtained by the appellant in this case to be, confers no title on the auction purchaser and, therefore, the joint family to which the properties belonged continued to be the owners of that property and did not lose their title thereto. the plaintiffs got a right to the property as soon as they were born, not by way of succession but by right of birth. Therefore, plaintiffs were certainly entitled to file a suit questioning the sale.