MATHUNSA ROWTHAN Vs. APSA BIN

JUDGEMENT

(1.) In the suit which gave rise to this second appeal the plaintiffs claimed to recover from the defendants Rs. 800 as compensation for improvements made by them while they were in possession, as auction-purchasers, of a house from which they were subsequently ejected by the defendants. The house belonged to one Johnsa Levvai and one Ramachandra Sastriar. These two persons mortgaged the house to one Samboo Ammal, the 4th defendant in the suit. The latter instituted a suit on the mortgage to which the defendants Nos. 1 to 3 in this suit were made parties as heirs of Johnsa Levvai, defendants Nos. 1 and 2 being his widows and the 3rd defendant his daughter. A decree was obtained on the mortgage and the properties were brought to sale. The plaintiffs became the purchasers at the sale and obtained possession of the house on the 7th August 1903. The 3rd defendant was a minor while the suit was going on and was represented by his uncle as guardian ad litem. Notice of the execution proceedings was issued to him. The process server could not find him as he had left for one of the islands beyond India. The process server s return stated that the 3rd defendant said that she had attained majority and was competent to accept service herself and received a copy of the notice. The process server, in addition, affixed the notice to the outer door of the house where the guardian ad litem used to reside, in token of serving it on him. The executing court apparently considered this service sufficient, for it proceeded to sale without taking any further steps to serve a notice on the guardian. After the plaintiffs had been in possession for about 15 months, the 3rd defendant s guardian ad litem put in an application on her behalf to set aside the sale on the ground of fraud. His application was dismissed by the District Munsit s Court and by the District Court on appeal. But on second appeal the High Court set aside the sale 011 the ground that the 3rd defendant had not been properly represented in the said proceedings as her guardian ad litem had not been properly served with notice. The 3rd defendant subsequently obtained an order for re-delivery of the properties.

(2.) The questions raised in the issues, so far as they are relevant to this second appeal, were whether the plaintiffs as purchasers in court auction could claim the value of the improvements made by them, and whether, if they could do so at all, they were entitled to succeed in the circumstances of this case, that is, whether they made the improvements bona fide and without notice of the circumstances invalidating the sale. With regard to the nature of the improvements made, the District Munsif s finding goes to show that they were accessory and urgent repairs required to make the house habitable. The District Munsif found that the plaintiffs were not guilty of any fraud and that they made the improvements before the guardian ad litem took steps to set aside the sale. He considered the plaintiffs entitled to recover the value of the improvements made by them and awarded them Rs. 512-1-6, making the amount recoverable by sale of the property n case of non-payment.

(3.) On appeal the District Judge held that the improvements were made after the 3rd defendant s guardian s application was put in and the plaintiffs had thereby been put on inquiry as to their position. He held also that the sale was held thout jurisdiction on account of non-service of notice on the 3rd defendant s guardian ad litem and was void. He was of opinion that the principle of Section 51 of the Transfer of Property Act, could not be applied to an auction purchaser to whom the principle of caveat emptor would be applicable. In the result, he reversed the decree of the District Munsif and dismissed the plaintiff s suit. The plaintiff s have preferred this second appeal to this court.