PONNIAH NADAR THIRUMANI NADAR Vs. STATE

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.

(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.