GIRIYA SHETTI Vs. ANATHAMMA SHETTITHI

JUDGEMENT

(1.) The first defendant's husband, a mulgeni lessee, fell into arrear and the plaintiff's vendor, who was the landholder, instituted a suit for the rent and obtained a decree in execution of which the 2nd defendant, who now prefers this second appeal, purchased the lease. The proclamation of sale was dated the 23 August, 1920, and the sale itself was held on the 13 November, 1920. The suit under which the sale was held was for arrears of rent for the year 1918-1919, ending with the 31 March, 1919. At the time of this sale, a further year's rent, that is for 1919-1920, had already fallen due and the plaintiff has now sued the 2nd defendant, as present lessee, for this amount.

(2.) The defence with which I am concerned is that the existence of the arrear of rent for the suit year was not disclosed in the sale proclamation. That proclamation was prepared by the plaintiff's vendor and no satisfactory explanation has been given why the arrear of rent was not shown there, in spite of the fact that a number of other encumbrances existing on the property were enumerated. All that the proclamation shows is that the property would be "subject to the payment of mulgeni to the petitioner." I think that a reasonable inference from this would-be that the mulgeni should be payable with effect from the date of the sale or at the most of the proclamation and not that arrears were already due for a completed year on the property. It has been said that the purchaser ought to have been aware of the suit and its subject-matter and should have drawn the conclusion that rent for the periods following the decree must still be outstanding, but I consider that he was not bound to look beyond the terms of the proclamation into any such matters, nor do I think that there is any force in the contention that the mulgeni lease provides that the rent, although falling due by the end of March, might be paid with some penalty by way of interest by the 20 November. Under Order 21, Rules 13 and 66, the decree-holder is bound to specify precisely what interest is being sold in the property and it is clear to me that in this case he failed to comply with that requirement. In Kasturi V/s. Venkatachalapathi (1918) ILR 42 M 41 : 35 MLJ 387. a decree- holder who was responsible for a proclamation failed to mention the existence of a hypothecation which had been executed by the judgment-debtor to his (decree-holder s) partner and of which subsequently he took an assignment. The learned judges observed: "The ground of the decision is that it was plaintiff himself who led intending purchasers to believe that the property was offered for sale free of encumbrances and the plaintiff, by concealing the existence of a lien of which he was aware, allowed the purchaser to pay full value for the property. He is, therefore, estopped from now denying that the sale took place free of encumbrances. ( Section 115, Indian Evidence Act.) Although this is a case not of a mortgage encumbrance but of a charge for rent, I think the same principle applies and that the plaintiff ought not to be allowed to recover the arrears of rent." It is objected that the 2nd defendant did not himself go into the witness-box in order to testify that he was misled but it appears that a plea to that effect was contained in his written statement, so that I do not think there is any substance in the objection.

(3.) I allow the second appeal, and except as regards the first defendant personally I set aside the decrees of the Lower Counts and dismiss the suit with 2nd defendant's costs throughout.