1. This second appeal has been filled by the original plaintiffs against the judgment of the Assistant judge, Akola, in Civil Appeal No. 171 of 1960, decided on 22-11-1962.
2. The original plaintiffs had filed a suit for possession and damages for use and occupation. The suit house was out to auction sale in Revenue Case No. 279 of 1950-51 of Akola for recover of arrears of Municipal taxes. In this auction sale the house was purchased by sitabai, the mother of the plaintiff No. 2 and the mother-in-law of plaintiff No. 1 Laxmibai, on 17-11-1950. Sitabai died on 29-1-1951 before the sale was confirmed in her name in those auction proceedings. It was contended by the plaintiffs that before her death sitabai had orally bequeathed and fitted the said suit property to plaintiff No. 1 Laxmibai in December 1950. In the said Revenue Case the name of plaintiff No. 1 Laxmibai was brought on record in place of Sitabai and a sale certificate was issued by the Revenue Authorities in her name and her name is also recorded in the Record of Rights Thus, according to the plaintiffs, Laxmibai became absolute owner of the suit house by virtue of this sale. It was alternatively contended that even if the gift and the oral will are found to be invalid, the plaintiff No. 2 being the son of Sitabai became owner of the suit house. It is contended by the plaintiffs that the defendants Nos. 1 to 7 are wrongfully in possession of the suit house, and therefore, they claimed possession of the suit house as well as the damages. It was further contended that on confirmation of the sale the plaintiff No. 1 got symbolical possession of the suit house on 31-7- 1953 and the defendants were asked to vacate the suit house, but they failed to vacate. The plaintiffs obtained permission of the Rent Controller and thereafter issued the notice. But as in spite of this notice the defendants refused to vacate the suit house, the present suit, was filed.
3. The defendants 1' (a) to (f) are parmanand Malvia. The case of the defendant No. 1 was that he was the tenant of defendant No. 2 Shantamma. Plaintiff No.2 Radhakisan had filed Civil Suit No. 398 of 1948 on the file of the second civil judge, class, I, Akola decided on 29-11-1949 and in that suit it was held that parmanand Malviya was a lessee from the original owner and the plaintiff No. 2 Radhakisan could not oust him. Defendant Nos. 2 and 3, namely, Shantammaand Lachmayya challenged the confirmation of the sale on the grounds raised by the defendant No. 1 and in addition they added that the suit house was owned by the defendatn No. 2's husband, defendatn No. 3, Lachmayya and one Motiram. The plaintiff No. 2 obtained a sale-deed from Motiram of 8-10-1943 in respect of half share of the suit house and from Lachmayya on 28-9-1944 in respect of the remaining half share. The plaintiff No. 2, however, could not obtain possession because the defendant No. 2 and her 2 sons, namely, Kanhaiya and Gopal, were in possession of the suit house. The plaintiff No. 2 therefore, filed Civil Suit No. 390-A of 1948 which was decided by the Civil Judge, Class I, Akola. on 29-11-1949. It was held in that suit that the defendatn No. 2 and her sons, Gopal and Kanhaiya, are owners of the suit property and the sale-deed executed by Lachmayya and Motiram could pass only their interest in the suit house. It was further contended that the present auction sale in the Revenue Proceedings were brought about by fraud and mis-presentation by the plaintiffs. Plaintiff No. 2 Radhakisan through his agent pressed for the sale of the suit house without revealing the fact to the revenue authorities or the municipal authorities about the interest of other owners. No notice of demand was issued to the real owners, that it is the defendant No.2, kanhaiya and Gopal. The property was purchased by the plaintiff no. 2 under the sale-added for Rs. 8000-, but it was held by the Civil Court as well as the High Court that Radhakisan purchased only 2/5th share in the property and the 3/5th remained with Shantamma, kanhiya and Gopal. Howver, by this method plaintiff No. 2 Radhakisan brought about this sale of the suit house in revenue recovery proceedings and purchased it in the name of sitabai for paltry sum of Rs. 4000/- Further the confirmation of the sale was itself a nullity, because in the meantime sitabai, the mother of the plaintiff No.2 died. The whole transaction was brought about by mis-presentation and fraud and Radhakisan deliberately kept the real owners in ignorance about the whole affair. The defendant No. 2 and her two sons, Kanhaiya and Gopal, were the owners of the property and no notice of demand was issued to them by them Municipal authorities. The sale is, therefore, void. The oral will and the gift alleged by the plaintiffs is also void in law and no right could be acquired by the plaintiff No. 1 on that basis. It was further contended that the marker value of the suitor house is Rs. 15,000/-. The plaintiff No. 1 was not the auction purchaser not the so-called rights in favour of sitabai had legally developed in the plaintiff No. 1. Therefore, it was contended that the suit was false to the knowledge of the plaintiffs and the defendants are entitled for compensatory costs.
4. The trial Court after appreciating the evidence on record came to the conclusion that no evidence has been adduced to the effect that Radhakisan is the sole heir of Sitabai. The trial Court, further held that the oral will and gift in favour of plaintiff No. I Laxmibai are not proved and even if they are proved they were void and would not convert and title. In this view of the matter the suit filed by the plaintiffs was dismissed.
5. Against this judgment and decree an appeal was filed by the plaintiffs, which was heard by the Assistant Judge. Akola and was decided by his judgment dated 22-11-1962. The learned Assistant Judge dismissed the appeal filed by the plaintiffs, and therefore, this second appeal has been filed. While dismissing the appeal the learned Assistant Judge found that the auction sale was not fraudulently brought about by the plaintiff No. 2, but on the second point the learned Judge held that since on the date of the confirmation of the sale Sitabai had already died and her legal representatives were not brought on record, the confirmation of the sale after Sitabai's death will confer no title in her favour and the confirmation itself was infructuous and the grant of sale certificate to the plaintiff No. 1 on 25-7-1953 can have no effect.
6. Shri Kherdekar, who appears before me in this appeal, contended that the learned Assistant Judge committed an error of law in holding that the sale was infrucuous. Once the sale is held and the auction money is deposited after the acceptance of bid, the bidder gets a title to the property and the confirmation of a sale and grant of a sale certificate are mere official routine acts which are automatic and the party is not expected to do anything in this behalf. As a matter of fact, confirmation of sale and grant of certificate is a matter of course. There is no provision in law either in the Code of Civil Procedure or Berar Land Revenue Code which enjoins upon the auction purchaser to make an application for confirmation of sale or for obtaining the sale certificate. There is also no provision in the Berar Land Revenue Code providing for bringing of the legal representatives on record if the judgment-debtor or the purchaser dies. A contract is created when the bid is accepted, and therefore, according the Shri Kherdekar, all subsequent proceedings are consequential which can automatically ensure in favour of the legal representatives. He further contended that principles incorporated in Section 65 of the Code of Civil Procedure will apply to these proceedings and even otherwise on the general principles transfer of property takes place on the date of sale or the acceptance of his and not on the date of the confirmation of the sale. Therefore, the date of sale is the material date. The Revenue officers have no power to refuse the confirmation nor the purchaser has any right to resile after he had deposited the whole amount. In this view of the matter, he contended that the whole approach of the learned Assistant Judge is wrong and therefore, his judgment is vitiated.
7. On the other side it is contended by Shri Chandurkar that the provisions of Section 65 of the Code of Civil produce have no application to the Revenue sale held under the Berar Land Revenue Code in pursuance of a default of payment of taxes. The title passes in the person in a Revenue sale held under the Berar Land Revenue Code on the date of confirmation of the sale and issuing of a sale certificate. The confirmation of sale under the Berar Land Revenue Code is not automatic, but the Revenue Officer has an option either to confirm or not to confirm the sale. He further contended that no confirmation of a sale can take place in favour of a dead person, because the property cannot be transferred in favour of a dead person as such. The scheme of the Code makes it very clear that a transfer of right in the property takes place on the dte of confirmation of a sale. This being the position as on the date when the sale was confirmed Sitabai was not alive, the confirmation of the sale in the name of a dead person is a nullity and does not confer any right either upon the dead person and consequentially on the legal representatives. He further brought to my notice that even the sale certificate dated 25-7-1953 is in the name of Sitabai, who was already dead . It was further contended by Shri . Chandurkar that even the finding recorded by the Courts below to the effect, that the sale in the Revenue proceedings was not brought about by fraud or mis-representation is vitiated because the Courts below have not taken into consideration the various circumstances and material on record while recording this finding.
8. So as to understand the rival contention raised before me, it is necessary to refer to certain facts. Radhakisan had purchased the rights in the suit house of Motiram and Lachmaya under sale-deeds dated 8-10-1943 and 28-09-1944 respectively. Thereafter he filed Civil Suit No. 390-A of 1948 against the present respondents and Ratankumair. The suit was dismissed on 29-11-1949 and it was held that the sale-deed had effect of transferring 2/5th share in Radhakisan's favour. Against this first appeal was filed by Radhakisan, which was Appeal No. 33 of 1950 in the High Court, and this appeal was decided on 10-2-1959. In the meantime Radhakisan got his name mutated in the Municipal record on the basis of the sale-deeds, because the names of Motiram and Lachmayya were appearing in the record. The taxes for the period 1947- 48 to 1949-50 to the tune of Rs. 97.25 remained unpaid and for recovery of these taxes the recovery proceeding was staried. As Radhakisan failed to pay the taxes, a sale in this revenue recovery proceeding took place on 17-11-1950 and the house was purchased by Sitabai, the mother of plaintiff No. 2 Radhakisan and mother-in-law of plaintiff No. 1 Laxmibai on that date. from order-sheets of the revenue proceedings it is quite clear that a requisition from the Secretary Municipal Council. Akola for recovery of the house-tax from the defaulter Radjakisan Laxminarayan of Akola was received on 5-8-1950. The order-sheet dated 9-8-1950 reads as under:.
'The defaulter through agent Sakharam present and is unwilling to pay the taxes as he has no possession of this house. And states that he has no objection if the house is not to action. Put up for report for sanction for sale' Thereafter it seems that attachment and sale were sanctioned. The publication was issued and the sale was fixed at 11.30 a.m. to 5.00 p.m. on 17-11-50 and the Tahsildar, Akola, was directed to get the publication report. Thereafter the order-sheet dated 17-11-1950 reads as under: 'The defaulter absent. Sale held vide sale list. 1/4th amount received. It be kept in deposit and credited on 18-11-1950. The A.P. is asked to pay the 3/4th within 15 days from the date of the sale. Await credit and objections. Case of 17.02.50'.
Then the order-sheet dated 217-12-1950 is as under:
'No credit of the dues from the defaulter, no claims or objection for report to S.D.C O.'
On 20-12-1950 the case was reported to the Sub Divisional Officer, Akola anfd the order-sheet dated 3-1-1951 reads as under:
'Returned to the Tahsildar Akola. A proclamation of sale fixed for 17-11-50 is not on record. It should be placed on record now and resubmitted for further orders.'
It seems on 10-1-1951 a proclamation of sale fixed for 17-11-1950 was placed on record and thereafter on 14-2-1951 the sale was confirmed by the Sub-Divisional Officer and the amount was directed to be transferred to Municipal fund. The order-sheet dated 5-3-1951 is as under:
'Shri S.D. Deshpande for the auction purchaser is present. He has filled an application stating that the auction purchaser died on 29-1-1951 and that the sale certificated be now issued to her heir Laxmibai, Case for report'.
On 15-3-1951 the Tahsildar observed that he had gone through the record and the application Laxmibai should be asked to produce legal heir certificate from the Civil Court. Thereafter it seems that some order was passed and then the order-sheet dated 26-4-1951 is as under:-
'Order communicated to Shri Deshpande pleader for A.P. Notice the defaulter Shri Radhakisan Laxminarayan to refund him the surplus amount being in Rev. deposit. Case for 3-5-1951'.
On 3-5-1951 the defaulter Seth Radhakisan was present. Refund voucher fro Rs. 390/12/ - was prepared and the he was directed to appear on 10-5-1951. The order-sheet dated 14-5-1951 reads as under:
'Defaulter Seth Radhakrishan present. The amount of Rs. 3902/12/- excluding the Municipal taxes is due to him. Refund voucher for Rs. 3902/12/- is prepared and delivered to him. Inform the S. Municipal Committee Akola to appear and take away the amount of their dues. Later : Amount of Rs. 97/4/- has already been adjusted to Municipal fund on 26-3-1951. Case may be filed:
Ex- P-10 which is a copy of the order passed by the Tahsildar on 8-5-1953 clearly shows that thereafter. Laxmibai filed an application for issue of a sale certificate on the ground that Sitabai had bequeathed the said house to her and he further directed that the sale and he further directed that the sale certificate should be issued in the name of Laxmibai who is the heir of Sitabai, if Laxmibai was prepared to take symbolic possession of the house. Certain recitals in this order are also telling. In para 3 of this order the Tahsildar has observed as follows:
'The house was owned by Sitabai. The house was sold for arrears of Municipal tax. The house was purchased by Laxmibai who is the daughter-in-law of Sitabai.'
Ex. P-15 is the sale-certificate dated 25-7-1953 which is issued in the name of Sitabai w/o. Laxminarayan. Though the order dated 8-5-1953 passed by the Tahsildar directed that a sale certificate should be issued in the name of Laxmibai, who is the heir of Sitabai if Laxmibai is prepared to take symbolic possession of the house, it is clear that the confirmation of the sale was in favour of Sitabai after her death and the sale certificate was also issued in her name, though she was not alive, Now, it will have to be seen what is the effect of this confirmation of the sale ans issuing of the sale certificate in the name of a dead person.
9. Before deciding the said question I propose to deal with the argument advanced by Shri Chandurkar that the findings recorded by the Courts below that the auction sale was not fraudulently brought about by the plaintiff are vitiated because the Courts below have not taken into consideration the various circumstances. Oral evidence and true material on record. In my opinion there is much substance in this contention of Shri Chandurkar.
10. It is pertinent to note that Radhakisan had purchased this property vide sale-deeds dated 8-10-1943 and 28-9-1944 from Motiram and Lachamayya. Thereafter, Civil Suit No. 390-A of 1948 was filed against the present respondents and Ratankumari., The said suit was dismissed on 29-11-1949 and in effect it was found that the said to sale-deeds had effect of transferring of 2/5th share only. First Appeal which was filed by Radhakisan was ultimately decided on 10-2-1959 and the appeal was dismissed. While dealing with this aspect of the matter the High Court has observed as follows:
'Then the second question that has been raised by Mr. chandurkar is that in any event he would be entitled to the property as the heir of Sitabai who was the auction purchaser in the auction which was held for the recovery of the arrears of municipal and other taxes in 1950. It is true that the auction came to be held after the institution of the original suit in October 1948, but I have no difficulty in holding that, assuming that the plaintiff can sustain his claim on the basis that he is the heir of his mother Sitabai, that would only give him a cause of action totally different from the cause of action totally different from the cause of action upon which he has grounded his original suit of October 1948. IT is true that an issue was sent by this Court and a a finding has been recorded against the plaintiff. But Mr. Chandurkar attempted to show that finding was wrong, and that he was not in a position to satisfy me that the auction sale did convert any right, title or interest in regard to the suit property to the plaintiff's mother Sitabai. But I do not think that this question can be gone into in the present suit which has been instituted on the basis of the two sale-deeds taken by the plaintiff from Motiram and Lachamayya respectively in 1943 and 1944. If plaintiff has any cause of action independent from the cause of action upon which the present suit has been filed, then all what can be said in his favour is that he might if so advised file a separate suit against the persons concerned basing his suit upon the cause of action which has accured to him only upon the death of his mother, Sitabai which took place in the year 1951. Under these ciricumstances, I do not think that I can consider the second point that has been raised by Mr. Chandurkar relating to plaintiff's right to claim the property on the basis that he is the heir of his mother Sitabai'.
It is also clear from the record that Radhakisan got his name mutated in the Municipal record on the basis of these sale-deeds in place of the original vendors, namely. Motiram and Lachamayya. From this it is clear that the bill of taxes or the notice of demand which was required to be issued by the Municipal Committee was obviously issued in the name of Radhakrisan. This is also clear from the record that at no time Radhakisan had informed the defendants about the arrears of these taxes. There is nothing on record to show that at any time the bill of demand was issued in their favour. From the order-sheets Ex. D-1 it is quite clear that on 9-8-50 Radhakisan appeared through his agent Sakharam before the Tahsildar and expressed his unwillingness to pay the taxes as he was not in possession of the house and further stated that he has no objection if the house was to be auctioned. There is nothing on record to show that at any time the notices were issued to the defendants who were in occupation of the property. It is further pertinent to note that in an auction sale the house was purchased in the name of Sitabai the mother of Radhakisan. Thereafter it is contended before the Revenue authorities that the house in question was orally gifted by deceased Sitabai to Laxmibai wife of Radhakisan. It is also clear from the record that Shakaram who was the agent of Radhakisan subsequently represented the auction purchaser. The order-sheet dated 4-4-1952 clearly bears this fact. It is also clear from the record that at no time Radhakisan or Laxmibai informed the Revenue authorities about the death of, Sitabai before the confirmation of the sale in her favour. It is further clear from the record that even the sale certificate was issued in the name of Sitabai. therefore, from the record it is quite clear that a systematic effort has been made by Radhakisan to get the property in his name. Though he failed in the Civil suit, by adopting this method and getting the property auctioned in a revenue recovery proceedings he indirectly got what he could not get in a civil osuit. There is considerable force in the contention raised by Shri Chandurkar that it was Radhakisan who got the property purchased in the name of his mother Sitabai, and thereafter has put up a story of real gift in the name of his wife. This inference is further strengthened from the fact that ultimately the balance amount was also refunded to Radhakisan after deducting an amount of Rs. 97.25. The order-sheet dated 14-5-1951 makes this clear. It is also clear from the record that till the sale was confirmed Radhakisan or his wife never informed the Revenue authorities about the death of Sitabai, though she died on 29-1-1951. The reason for this is obvious. Section 159 of the Berar Land Revenue Code which deals with the confirmation or setting aside of the sale empowers the Deputy Commissioner to set aside the sale if he has reason to think that the sale ought to be set aside. It seems that Radhakisan apprehended that if the information about the death of Sitabai is given to the Revenue authporities, the Revenue authoritites, the Revenue authorities might not confirm the sale at all and if the sale is not confirmed, then his efforts to get the property sold in auction in the revenue proceedings might get frustreated. Therefore, in my opinion, there was a deliberate suppression on his part in withholding this information from the Revenue authorities and even the confirmation of sale has been brought about by Radhakisan by withholding and suppressing this material fact from the Revenue autholrities. Thus it is quite clear that Radhakisan who could only become a joint owner with the defendants had made an intentional default in payment of taxes and has purchased the property in the name of his mother. This was nothing but a fraudulent contrivance thought out by him for acquiring the property in spite of the decision of the Civil Court. In my opinion, those Revenue recovery proceedings as well as the auction sale brought about in the same proceedings for the recovery of the arrears of taxes were with a view to defraud other co-owners and to get indirectly the same right and advantage which Radhakisan could not get by virtue of the two sale-deeds in his favour by Motiram and Lachmayya in view which was subsequently confirmed by the High Court in First Appeal.
11. However, it is contended by Shri Kherdekar that it cannot be said that any fraud was committed by Radhakisan in getting the sale effected if he was legally entitled to do so. there is always a presumption that an official procedure must have been followed by the authorities concerned and the auction sale was held after the public notice or a proclamation was issued. Moreover the defendants were also residing in the same house and it was their duty to pay the taxes or to find out their liability. The contrivance to get the property sold will not amount to fraud, because the method followed was legal.
12. In my opinion, the matter is not so simple. The whole conduct and acts or omissions on the part of Radhakisan will have to be looked into for finding out the cumulative effect of his conduct as well as the acts and omissions on his part. If the whole matter is considered in its proper perspective, in my opinion, it will have to be held that Radhakisan got the Revenue recovery proceedings started behind the back of the defendants and got the property sold in the auction sale by suppressing the material facts from the authorities concerned. It is not disputed that his name alone was recorded in the Municipal records. Naturally, therefore, individual notices must have been issued in his name only. In these special circumstances of this case it contemplated by the provisions of the Berar Land Revenue Code was enough for giving a proper notice to other occupants even if it is assumed that it must have been issued in the ordinary course of official duty. From the order-sheets of the Revenue records it is also clear that the procedure followed in this behalf was not fair and the Revenue authorities made from time to time on behalf of Radhakisan and his wife Laxmibai. The Courts below have ignored the vital evidence on record. The material vital evidence on record. The material circumstances apparent from the order-sheets of the revenue proceedings were also not considered by the Courts below which clearly established the modus operandi followed by Radhakisan in getting the title transferred in his favour only by paying Rs. 97.25 which was the amount of tad due, because it is quite clear from the record that ultimately the balance of the amount deposited by Smt. Sitabai, after deducting Rs. 97.25, was returned to Radhakisan, the defaulter. Therefore, disagreeing with the Courts below I hold that the whole transaction is vitiated because it was brought about by misrepresentation and fraud.
13. Once it is held that the auction sale itself was vitiated as it was brought about by misrepresentation and fraud, as a matter of fact it is not necessary to decide other question raised in this appeal by Shri Kherdekar, namely, what will be the effect of confirmation of sale or issuing of a sale certificate in the name of a dead person. However, since the matter has been argued in in detail before me I think it will be in the fitness of things to decide the point having regard to the finding recorded hereinbeofe. Shri Kherdekar relied upon the various decisions of the different High Courts in support of the proposition, namley, that the transfer of property in an auction sale takes effect on the date of the auction sale itself and not on the date of confirmation of sale or issuing of the sale certificate. for this proposition he has relied upon the following decisions:
(1) Janak Raj. v. Gurdial Singh : 2SCR77 .
(2) Bhagavandas v. P.S. Soma Iyer : AIR1969Ker263
(3) Soundararajan v. Mahomed Ismail : AIR1940Mad42 .
(4) Mandi Mia v. Sekander Mea : AIR1941Cal411 .
(5) Veda Goundar v. Arunachalam AIR 1958 Mad 317
(6) Puttayya v. Subraya AIR 1958 Mad 317.
(7) Kamakhya v. Shyam Lal AIR 1929 OudH 2350, and
(8) Motilal Hirachand v. Sadabai : AIR1970Bom67
In my opinion the propositions of law laid down in these various decisions are not applicable to the facts and circumstances of the case. No doubt it is held in some of these decisions that an application for confirmation of a sale is not necessary and it is also held that though the purchaser's title become perfected only on the issue of a sale certificate by virtue of Section 65 of the Code of Civil Procedure, the property is to be deemed to have been vested in the purchaser from the time when the property is sold and not from the time when the property is sold and not from the time when the sale becomes absolute. However, in my opinion, the said decisions have no application to the sales held under the Berar Land Revenue Code. Normally an auction purchaser does not acquire title to the property before he pays purchase money and obtains a document of transfer in his favour of sale is confirmed.
14. This aspect of the matter has been considered by the Nagpur High Court in Kisanlal v. Namdeo . After quoting Section 65 of the Code of Civil Procedure it is observed by the Nagpur High Court as under:
'The word 'deemed' places beyond doubt that but for this provision the property would not vest until the date of confirmation and that therefore it was necessary for the legislature to step in any by a fiction relate the title back to the date of the sale. The sale before me, however, was not held under the Civil Procedure Code but under the provisions of the Berar Land Revenue code and there is nothing corresponding code. The consequence, in my opinion, is that the title does not relate back in the case of such a sale and that consequently it does not accrue until the date of confirmation'.
The Bombay High Court has also an occasion to deal with this aspect of the matter in a case reported in Shiva Martand Tapkire v. Arun Nankchand : AIR1969Bom93 . In Para 3 of this decision this Court has observed:
'It is clear from the provisions of the Bombay Land Revenue Code that, after the auction sale of an immovable property under Section 165, an application to set aside the sale can be filed under Section 178. If no application for setting aside the sale is made under Section 178. If no application for setting aside the sale is made under Section 178, or if such an application is made and rejected, the Collector may confirm the sale under Section 179. After the sale is confirmed, the Collector puts the person declared to be the purchaser into possession of the land and grants him a sale certificate under Section 181. No transfer of the property takes place till the sale is confirmed and a sale certificate is granted to the person declared to be the purchaser of the land.'
'If an auction sale were a completed transfer of property, as urged by Mr. Nargolkar, there might have been some substance in this contention that the sale is not vitiated on account of the minority of the auction purchaser. As pointed out above the acceptance of a bid at an auction sale does not result in an immediate transfer of title to the bidder but creates certain rights and obligations..................Certain rights and obligation s have been attached by the Bombay Land Revenue Code to the contract which emerges when a bid is accepted at an auction sale. The incompetence of a minor to enter into that contract is not cured by the fact that certain rights and obligations have been attached thereto by statute.'
Thus from decision also it is quite, clear that that in a case of a sale held under the Revenue Code no transfer of the property takes place till the sale is confirmed and the sale certificate is granted to the person declared to be a purchaser of the land. The provisions of the Berar Land Revenue Code are par material with the provisions of the Bombay Land Revenue Code, provides for proclamation of sale of immovable property. Sub-section (2) of Section 149 then provides that such sale shall confer a title in the purchaser free of all encumbrances. Section 150 then provides as to how, when and by whom as sale is to be held. Thereafter, Section 153 provides for a deposit of an amount by the purchaser. Section 155 then makes a provision for filing of an application to set aside the sale on deposit of the arrears. Section 156 provides for making an application to set aside a sale for irregularity etc. Section 157 then makes a provision for institution of a suit to set aside the sale on the ground of fraud etc. Then comes Section 159 which deals with the confirmation or setting aside of the sale. Section 159 is to the followed effect:
'159. On the expiration of thirty days from the date of the sales, if no application under Section 155 or Section 156 has been made or if such application has been made any rejected, the Deputy Commissioner shall make an order confirming the sale:
Provided that, if the Deputy Commissioner has reason to think that the sale ought to be set aside:-
( i) not withstanding that no such application has been made, or.
(ii) on grounds other than those alleged in any application which has been made and rejected, or
(iii) notwithstanding that a period of thirty days from the date of sale has expired.
he may, after recording his reasons in writing set aside the sale at any time before making an order confirming the sale.'
Then Section 161 provides as under:
'161. If the sale of any immovable property has been confirmed, the Deputy Commissioner shall put the purchaser in possession of such property, and shall grant him a certificate, specifying the date on which the sale is confirmed, the property sold and the name of the purchaser.'
It is thus quite clear that the confirmation of a sale is not automatic nor it is a mere formality. So far as the provisions of the Berar Land Revenue Code are concerned, even if no application has been made as contemplated by Section 155 or Section 156 of the Berar Land Revenue Code, still the Deputy commissioner has the power to set aside a sale notwithstanding that no such application has been made. It cannot be said in the instant case that if the fact about the death of Sitabai was brought to the notice of the Revenue authorities they would have confirmed the sale in favour of a dead person without taking into consideration various aspects of the matter, because it is pertinent to note in this case that Smt. Laxmibai was claiming as a sole heir of deceased sitabai on the basis of alleged oral gift. Apart from this claim of Laxmibai wife of defaulter Radhakisan, the defaulter himself was claiming the house as a next heir of deceased Sitabai, his mother. The death of Sitabai mother of the defaulter, therefore, assumed great importance in this case. Moreover once it is held that no transfer of property takes place till the sale is confirmed and a sale certificate is granted to the person declared to be the purchaser of the land, then in my opinion, having regard to the peculiar facts and circumstances of the case the Courts below were right in holding that the confirmation of sale was infructuous and the property was not transferred in favour of Sitabai as the confirmation of the sale as well as grant of sale certificate was of no effect.
15. It was further contended by Shri. Kherdekar that in view of the provisions of Section 157 (2) of the Berar Land Revenue Code which permit filing of a suit for setting aside as sale on the ground of fraud etc. it is not open for the defendants to raise a plea of fraud in defence when they have not chosen to file a civil suit in this behalf.
16. It is not possible for me to accept this contention of Shri Kherdekar. This Court had an occasion to deal with this aspect of the matter in Haribax v. Punaji : (1961)63BOMLR922 . After examining the scheme of the Berar Land Revenue Code in this behalf this court has observed:
'In fact the right given to a person to set aside a sale on the ground that there was no arrears for which the property could be sold itself shows that a sale cannot be held by a revenue officer if there are no arrears in respect of holding or no arrears in respect of holding or no arrears for which the property could be put to sale. Whether this finding can be given in a suit filed at the instance of a person who claims to be the owner of the property, or this finding is required to be given at the instance of the same person when possession is asked of him, is not a matter of importance when one is considering the right that is created under Section 157 (2). I do not also see how an act which is vitiated by fraud cannot be so challenged by way of defence in a suit for possession. Fraud will vitiate all actions, whether fraud is committed by a party or revenue officer who conducts the sale with special powers. I, therefore, cannot accept that provisions of Section 157 (2) of the Berar Land Revenue Code have the effect of depriving a party-defendant in resisting the suit for possession filed by an auction purchaser at the revenue sale in showing that in fact no arrears were due and the holding could not have been put to sale.'
In this view of the matter there is no substance in the contention raised by Shri Kherdekar in this behalf.
17. In the result, therefore, the appeal fails and is dismissed with costs.
18. Appeal dismissed.