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Shankar Govind Joshi Vs. Parashram Janardan Gokhale - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 617 of 1918
Judge
Reported in(1920)22BOMLR970; 58Ind.Cas.391
AppellantShankar Govind Joshi
RespondentParashram Janardan Gokhale
DispositionAppeal allowed
Excerpt:
bombay high court civil circulars, rule 69 (vii) - decree-execution-court sale-proclamation of sale-condition that the interest of the sons of the judgment-debtor are not put up to sale-interests of sons do not pass at the sale.;in execution of a decree, the judgment-debtor's bhare (which was eight annas) in certain property was put up to sale. the proclamation of sale contained a condition that the interests of the sons of the judgment-debtor were not sold. at the court-sale, the share was purchased by the decree-holder. the decree-holder brought a suit to recover the eight annas share by partition and obtained a decree. the judgment-debtor had three sons, but their existence was not known to the decree-holder; and (hey ware not made parties either to the suit or the proceedings. the..........an order that the sale with regard to the mortgaged property should proceed in respect of eight annas share of defendant no. 1. that was the share of govind, the father of the present plaintiffs. apparently no one knew of the existence of the plaintiffs at that time. they were not made parties to the proceedings. under that order the property was put up for sale by auction. ah nobody bid over rs. 1,000, the present defendant bought the eight annas share for rs. 1005. the defendant then filed a suit for partition against the holder of the other eight annas share and got a decree in 1911. the plaintiffs who are the sons of govind then came forward and said that they were not parties to the decree and darkhast, and that the court sale only affected their father's share which was two.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case the Court passed an order that the sale with regard to the mortgaged property should proceed in respect of eight annas share of defendant No. 1. That was the share of Govind, the father of the present plaintiffs. Apparently no one knew of the existence of the plaintiffs at that time. They were not made parties to the proceedings. Under that order the property was put up for sale by auction. Ah nobody bid over Rs. 1,000, the present defendant bought the eight annas share for Rs. 1005. The defendant then filed a suit for partition against the holder of the other eight annas share and got a decree in 1911. The plaintiffs who are the sons of Govind then came forward and said that they were not parties to the decree and Darkhast, and that the Court sale only affected their father's share which was two annas, and that, therefore, their share of annas six remained unaffected.

2. We have to consider then what was sold by the Court under the order made on the 22nd October 1908. No doubt the Court directed that the eight annas share of defendant No. ] in that suit should be sold. Then the proclamation of sale was drawn up in accordance with the High Court Circulars. At p. 97, Rule G9 (vii) lays down in what form the proclamation of sale should be prepared. That states 'If in the case of a Hindu judgment-debtor it is desired to sell the interest of any other member of the family (o. g. that of a minor son or brother), the name of such member and the fact that his interest is being sold must be stated in the proclamation, as otherwise his interest will not pass to the purchaser.' A slip was added to the proclamation of the sale that the interests of the sons of the judgment-debtor were not sold. If it had not been for that slip, no doubt under the ruling of the Privy Council in Shripat Singh v. Maharaja Sir P.K. Tagore (1916) 19 Bom. L.R 290 the sale of the right, title and interest of Govind would have included other interests which the judgment-debtor himself might have sold. But when it is expressly stated in the proclamation that the interests of the sons are not sold, and it turns out afterwards that there are sons, then it is impossible to see how it can be argued that the auction-purchaser had purchased the interests of the sons. It makes no difference if by some mistake a certificate is given to him that he has purchased the eight annas share of Govind. In this case the defendant himself was the purchaser, and it was his business to look at the proclamation of sale, and see exactly what was being sold. We have been asked to look at other facts in the case, namely, the order of the Court and the certificate. But however much we look at those other facts, we still have this plain fact that the interests of the sons were not sold. If they were not sold, they could not have been bought. It may be that jail the equities in the case may be with the defendant. But lie has only himself to blame, if he has been so careless at the time of the auction not to see exactly what was being put up for sale. The learned Judge seems to think that it was not the business of the defendant to exercise any such precautions, and that if he purchased without dreaming that the Karkun would add such a slip, as was added, against the orders of the Court, still he must be taken as having bought what as a matter of fact was not put up for sale. It is necessary in Court sales that everything should proceed according to order, and once we depart from the rules, and find, as we are asked to do in this case, that a man has bought what was not put up for sale, there is no knowing what arguments may be presented to us in other cases, with the result that there will be no regularity and no proper order in conducting these Court sales. In my opinion, therefore, the decree of the lower appellate Court must be set aside, and the plaintiffs must succeed. The decree of the trial Court should be restored with costs throughout.

Heaton, J.

3. Many yearn ago it was recognised that the laxity and confusion in connection with the Court sales of joint family property of Hindus amounted to an evil which it was necessary to correct. Joint family property was loosely and imperfectly described, and it was constantly maintained that the interest therein of members whose existence had been totally ignored during the progress of the suit had been sold at Court sales. It was in order to introduce some precision and care in these matters that the High Court laid down Rule 69 (vii) of the Manual of High Court Circulars at page 97, which has been referred to by my Lord the Chief Justice. This rule called general attention to the circumstance that if in the case of a Hindu judgment-debtor it was desired to sell the interest of other members of the family, the names of those members should be stated. We have here a typical case. A mortgagee brought a suit and obtained a decree, and under that decree the eight annas share of defendant N o. 1 in the suit was ordered to be sold, and property described as his eight annas share in the proclamation was sold. As a matter of fact he had three sons. But during the progress of the suit no mention was made of them, and the property was described roughly in the proclamation as the eight annas share of this defendant No. 1. But in the proclamation of sale there appeared, in accordance with the very careful directions that this Court had given, a notice that 'no interest of any son, brother or other co-parcener of the said judgment-debtor shall pass unless hereinbefore by name expressly specified for sale.' What was actually announced for sale, therefore, was the interest of defendant No, 1, and the interest of other members of the family was excluded. ' It seems to me, after hearing this case, that it is futile now to urge that what was sold at that sale was the entire eight annas share. To do so would be to ignore the express provision in the proclamation of sale. It would also be to effect that very evil which the careful orders of this Court were promulgated in order to prevent. I confess I am rather astonished to find the Court of first appeal apparently taking the view that the Karkun who pasted on the proclamation this condition that no interest of any son, brother etc. should pass, had done so against the orders of the Court. There is nothing on the record, so far as I can see, to justify such a statement. On the other hand, there are express and definite rules of this Court, and it may be presumed, and I think safely presumed, that this condition was introduced, not by the whim of the Karkun, or against the orders of the Court, but in order to give effect to the directions of the High Court. I think, therefore, the appeal must be allowed with costs throughout.


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