M C NAGASAMI IYER Vs. NRAMASAMI IYER

JUDGEMENT

(1.) The first point urged; for the appellant in this second appeal is that the purchase by the 1 defendant enured for the benefit of the plaintiff as well, and that he is, therefore, entitled: to a decree, so far as his share is concerned. The finding is that both the plaintiff and the 1st defendant defaulted to pay the Government revenue, in consequence of which the Revenue Authorities brought the plaintiff's properties to sale, and it was sold in auction. The contention of Mr. Anantakrishna Iyer for the appellant is that the plaintiff and the 1 defendant are co- owners, that by the default of the co-owners the property was sold, that taking advantage of his position as such the 1 defendant bought the property and that, therefore, Section 90 of the Trusts Act applies to this case. In the first place I am not satisfied that the word, co-owner applies to the case of joint pattadars who are raiyatwari tenants. The plaintiff, is the owner of specific items of property, and. the mere fact that the patta stands in the joint names of himself and one or two others would not make the other persons co-owners with the plaintiff within the meaning of Section 90 of the Trusts Act. It is urged that there is a joint liability, to pay the Government revenue and that; that joint liability makes them co-owners. ID my opinion it is only an accident, that the patta stands in the names of two persons who are entitled to, different items of property and who have no community of interest between them. In this case no doubt the plaintiff: and the 1 defendant happen to be, relatives, but there are cases in which, persons who have nothing to do with one another-happen to own property for which patta stands either in the joint names of both or in the name of one of them or in the name of a third person. In such cases, if the owner of some specific items makes default in paying the Government revenue, the Government is entitled to bring any one of the items mentioned in the pat In, in respect of which a default in payment of revenue is made, to sale, and this circumstance, in, my opinion, will not make joint pattadars or persons, who own, lands separately but for which the patta is joint, co-owners." Reliance is placed upon an observation in Faizur Rahman V/s. Maimuna Khatun 20 Ind. Cas. 510 : 17 C.W.N. 1233 : 18 C.L.J. 111 for the position that the plaintiff and the 1 defendant are co-owners. There is no, definition given of co-owners, but in all the cases which have been, cited at the Bar I find that co-owners are persons who own property jointly, that is to say, there was no division by metes and bounds of the shares of the different owners. In the case of Faizur Rahman v. Maimuna, Khatun 20 Ind. Cas. 510 : 17 C.W.N. 1233 : 18 C.L.J. 111, the persons who made default in payment of the revenue due to Government were co-owners with the persons whose shares were afterwards sold. Section 90 of the Trusts Act applies only to cages of tenants for life, co-owners, mortgagees and other qualified owners of property who avail themselves of their position as such, in gaining an advantage in derogation of the rights of other persons interested in the property. In that view I do not think that-the decision in Deonandan Prasad V/s. Janki Singh 39 Ind. Cas. 316 : 44 C. 573 : 15 A.L.J. 154 : 32 M.L.J. 206 : 21 C.W.N. 473 : 1 P.L.W. 294 : (1917) M.W.N. 254 : 25 C.L.J. 259 : 21 M.L.T. 240 : 5 L.W. 526 : 19 Bom. L.R. 410 : 414 I.A. 30 (P.C.) helps the appellant. In that case their Lordships of the Privy Council held that, if one co-owner makes default in payment of Government revenue and if the object be to bring the share of the other co-owners to sale and afterwards to buy the property himself, such a sale, though good, would enure for the benefit of the owner of the share which has been sold. They also observe that it is not necessary that there should be actual fraud proved in order to enable the co-sharer whose share has been sold in auction in a revenue sale to claim the benefit of the purchase by another co-sharer; but from their judgment it is clear that the person who takes advantage of his position as a co-sharer must have done something in that capacity, that is qua co-sharer, to bring the property of the other co-sharer to sale. In this case the finding is that both the plaintiff and the 1 defendant defaulted to pay the Government revenue, and there is no finding that the 1 defendant by any act or illegal omission on his part brought the plaintiff's property to sale. That being so, I do not think the plaintiff can claim from the 1 defendant the property which he purchased in Court auction. The auction was a public one, and the 1 defendant and the plaintiff's brother were present. Under the Revenue Law it was open to any defaulter to buy the property. It was open to the plaintiff to buy the property, as it was open to the 1 defendant to buy it. In these circumstances it cannot be held that the purchase by the 1 defendant enured for the benefit of the plaintiff.

(2.) The next point urged by Mr. Ananthakrishna Iyer is that the Collector had no power to set aside an order made by the Deputy Collector. But on this point the law is quite clear. The Collector is the final authority on matters of this kind, and he is the person who has to dispose of such matters. The Deputy Collector has only delegated authority, and the Collector has power to set aside or confirm the order of the Deputy Collector. I do not think this contention is tenable. The last contention is that the Collector did not give notice to the plaintiff when he set aside the order of the Deputy Collector. I must observe, as was fairly conceded by the learned. Advocate-General, that in every case in which an order is made against a party, notice should have been given to that party before such order is made, whether the order, is made by a Revenue Authority or by a Judicial Authority. I think it is a salutary principle that notice should be given to a person before an order is made against him. In this case the Deputy Collector set aside the sale, but the Collector afterwards confirmed the sale. The plaintiff has not proved that he could have urged any matter before the Collector which could have induced him to pass an order different to that which he has passed. It appears from the evidence that the plaintiff was aware of the order, but he did not apply to the Collector to have the order reviewed. The Collector set aside the order of the Deputy Collector solely on the ground that the reason given by the Deputy Collector was not one of the reasons contemplated by the Revenue Recovery Act. The Deputy Collector set aside the sale on the ground that there was no proper bid. That is not a reason for which a sale could be set aside. If the plaintiff could show that he had very good grounds which he could have urged before the Collector, I would be inclined to hold that the plaintiff was prejudiced by his not being given notice, before the Collector passed his order. But in the circumstances of the case it cannot be said that he was in any way prejudiced, because from the evidence it appears that he could have urged no ground successfully against the order of the Collector. On this ground, I think, this objection is not tenable.

(3.) In the result, the second appeal fails and is dismissed with costs.