SIVASANKARAN Vs. STATE

JUDGEMENT

(1.) Defendant 6 in O.S. No. 24 of 1103 on the file of the Trivandrum District Court has preferred this appeal against an order passed by the learned District Judge of that Court regarding the objection he raised to the Court auction sale and resultant delivery by Court, of an item of immovable property. The appellant's mother brought the above named suit in forma pauperis and for realising the court fee due on the plaint and on the memorandum of appeal preferred against the decision of the Trial Court, the State took out execution against her and brought to sale the property in dispute here which was item (1) in the plaint. The State itself purchased the property and also obtained delivery. At that stage the appellant intervened with his objection that the property belonged to a sub-tarwad composed of his mother and her four children. Defendants 6 to 9, that the mother by herself had no saleable interest in the property and that the Court sale conveyed no title to the State, the auction purchaser. The objection petition also set out that as the senior male member of the sub-tarwad the appellant was in possession of the property and that no delivery was actually effected in favour of the State. Alternatively it was claimed that in case the Court found that possession had passed to the State the property should be redelivered to the appellant.

(2.) Admittedly the property was bequeathed to the plaintiff in the suit and her children under a will. The parties being Christians the lower Court rightly repelled the case that the legatees under the will constituted a sub tarwad. The Court further found that under the terms of the concerned will the plaintiff was only entitled to a 1/5 share of the property and that the sale certificate conveyed to the State the plaintiff's 1/5 share alone. Possession was found to have passed to the State of the entire property, but no redelivery as asked for by the appellanst was granted. Instead the Court in the concluding paragraph of its order said:

(3.) In the Court below the position taken up by the State was that the Court auction sale operated to convey the entire interest in the property to the State. No attempt was however made before this Court by any cross appeal or memo of objections to reagitate that question. In other words, the State submitted to the lower Court's decision that by the Court sale it became entitled only to a 1/5 share of the property. The appellant's learned counsel made a faint attempt to show that the plaintiff in the suit and her children constituted a sub-tarwad. As indicated earlier that case has no legs to stand upon. The more serious arguments raised in the appeal were that on the finding that the Court sale operated to convey only the mother's undivided 1/5 share in the property to the State the lower Court went wrong in refusing to redeliver the property to the appellant and that the Court's direction to effect a division in the present proceeding went beyond its powers.