1. The property in respect of which disputes between the parties in this case arose belonged to one Chick Bommiah. He executed on 7-7-11 the original of Ext. G in favour of defendant 2 Chikmalliah concerning his properties, which I may here mention had been hypothecated by him to one Shiyaram Singh sometime before the execution of tins document. In pursuance of this document Chickmalliah executed the sale deeds exts. L, BBB, MM and MMM dated 28-8-41, 28-10-41, 4-11-41 and 3-9-42 respectively in order to discharge debts due by Chick Bommiah, as mentioned in Ext. G. To all these documents Chick Bommiah's attestation as evidence of his consent has been taken.
In execution of a decree obtained by defendants 4 and 5 against the second defendant, all the properties of Chick Bommiah mentioned in Ext. G were attached and the suit property which is a dry garden land was purchased by the decree-holders as per sale certificate Ext. P. Plaintiff respondent has purchased the suit property from Defendants 4 and 5. Meanwhile Chick Bommiah filed a claim petition contending that Ext. G did not convey his interest in the properties to Chick Malliah and that he continued to be the owner of the properties. But the claim petition was dismissed for default. Subsequently the suit filed by him for setting aside this order was withdrawn with permission to file a fresh suit. But no such suit has since been shown to have been filed. The plaintiff-respondent is the purchaser of the suit property from defendants 4 and 5.
After the claim case filed by Chick Bommiah was dismissed on 2-9-42, the second defendant Chick Malliah executed on 3-9-42 the sale deed Ext. 8 conveying the suit property to the first defendant, and it is the first defendant who is the first appellant in this case. Defendant 6 has purchased the properties mentioned in Ext. G other than the suit property from the second defendant's son the 3rd defendant in whose favour Chick Bommiah had executed Ext. I on 8-5-43 and the 6th defendant claims to have discharged the debts due by Chick Bommiah under the hypothecation deed executed by him in favour of Shiva-ram Singh.
2. The first contention raised by the first defendant who claims the property as having purchased it from the defendant is that the attachment of the suit property was not effective as a copy of the attachment warrant was not affixed on it and a copy of the warrant was not affixed to the Court notice board as required under Order 21, Rule 54, Civil P. C. On the other hand, it is contended that as a copy was affixed on one of the properties that were attached and all the properties including the suit property are in the same village, the requirements of the rule are satisfied. There is no evidence whether a copy of the warrant was affixed to the Court notice board, except for the fact that the Amin's report about it is silent. But these two defects, if they are defects, do not arise for consideration in this case as after the attachment and prior to the sale in favour of defendants 4 and 5, the suit propertyhad not been conveyed by the judgment-debtor the second defendant in this case, to either the first defendant or any one else.
By the time the second defendant executed the sale deed Ext. 8 on 3-9-42, the suit property had been sold away in execution of the decree and purchased by defendants 4 and 5 as per the sale certificate Ext. P on 28-7-42. It is no doubt true that the sale was confirmed after the date of the sale deed. But this by itself cannot help the first defendant as the sale was held actually prior to the date of Ext. 8. When the second defendant sold the property to the first defendant, long after 30 days had elapsed from the date of the Court sale, he had ceased to have any interest in the property. In fact, so far as he was concerned he had no right, at the time he sold the property, to question the sale on the ground that the attachment was defective and even if there was no attachment the sale is valid as against the judgment-debtor. I may here refer to the decision reported in -- '47 Mys HCR 372 (A)' in which it has been held that
'An auction-sale held in execution of a decree is not invalid for want of attachment, or because the attachment was effected in an irregular manner.'
If the second defendant, the judgment-debtor, had no right to question the sale, a person like the first defendant who purports to purchase the property from him can have no better right than that of his predecessor. The contention of the appellants that the attachment was not valid therefore fails.
3. The main contention of the appellant is that the property continued to belong to Chikka Bommiah even after he executed Ext. G which purports to be a will in favour of Chikkamalliah and the latter who was the judgment-debtor of defendants 4 and 5 had no title to the suit property when it was sold in execution of the decree against him. The objection of the respondent is that the appellant is not entitled to rely on the title of Chikka Bommiah to the suit property as Chick Bommiah had filed a claim petition & it was dismissed for default. The suit filed by Chick Bommiah within one year from that suit was subsequently withdrawn with permission to file a fresh suit and it is no doubt true that no fresh suit is shown to have been filed since then, and it may be taken that the dismissal of the claim petition has not been set aside in any subsequent suit.
On the other hand, it is contended that as the claim petition was dismissed without investigation nothing comes in the way of Chick Bommiah or any person under him laying claim to the property or contending that Chick Bommiah continued to be the owner of the property till the time of his death. This contention is not without substance. It was held in -- '49 Mys HCR 275 (B)' that where a claim was dismissed for default the order of dismissal was not made as one after investigation and therefore Order 21, 63, Civil P. C, would not apply to the order and there would be no obligation on the part of the claimant to have that order set aside. That decision is fully applicable to the facts of this case.
Therefore, since the claim petition was dismissed for default, it cannot be said that anything conies, in the way of Chick Bommiah's title being raised, in spite of his failure to get the order in the claim case set aside. It is no doubt true that the observations made in this case as regards suits filed under Order 21, Rule 103 read with Article 11(a) have not been followed, in the decision reported in --
'Ramchandra Rao v. Subba Rao', AIR 1952 Mys 25 (C), but the actual decision in respect of Order 21, E. 63 which is the point under consideration is binding on this Court. It may be added, that it has been made clear in -- 'AIR 1952 Mys 25 (C)' that unless the words 'alter investigation' in Order 21, Rule 63 are deleted the intention of the Legislature in amending Article 11 by dropping the words 'after investigation' in it may not be said to have been achieved without doubt.
When reference to the intention of the Legislature for amending Article 11 is referred to in thatdecision, it is done, in order to point out that the Legislature's attempt to avoid the distinction that arises by the presence of these words in Article 11 and the absence of the same in Article 11(a) shows that the absence of these words in Article 11(a) issignificant. Similarly so long as these words are retained in Order 21, Rule 63 which bars a subsequent suit, it must be held that the bar in it only applies to cases in which the Court passes an order in claim cases after investigation. It is thereforeopen to appellant to contend that Ext. G executed by Chick Bommiah is a will and Chikkamalliah had no interest in the property till the latter died.
4. Before coming to the consideration of the document, the original of Ext. G, another objection to the appellant contending that the property did not belong to Chikmalliah, but belonged to Chick Bommiah may be disposed of. It might here be stated that it is no doubt true that the rights of both the plaintiff and the first appellant are based on the right of Chikmalliah to the suit property. It is no doubt true that if Chickmalliah had no right in the suit property the first defendant's title to the suit property is as shaky as that of the plaintiff himself. But as it is the plaintiff who has come to Court it is opento the first defendant-appellant to contend that he cannot succeed as he has not derived any title to the suit property since Chickmalliah, his predecessor-in-title, had no right to it.
Then again it is no doubt true that if Chikmalliah had voluntarily sold the suit property to defendants 4 and 5 the predecessors-in-title of plaintiff, he was estopped under Section 43 of the Transfer of Property Act from pleading that it did not belong to him, when at any rate he became the owner of it after Chick Bommiah's death. This principle however does not apply to cases of involuntary sales, such as Court sales in which the interest of Chikmalliah was purchased by defendants 4 and 5, predecessors-in-title of plaintiff. I may here refer to the decision reported in --'Nanak Chand v. Gandu Ram', AIR 1938 Lah 360 (D) that:
'Where certain share of a person is sold by a Court sale though in fact he was not entitled to any such share at the time of sale but subsequent to the sale has become entitled to such share, such person in equity would not be compelled to make good from the share which he subsequently acquires the title conveyed to vendee at the court sale because there can be no question of equities in the case of a Court sale.'
5. Having thus found no good reason coming in the way of examining the title of Chickmalliah on the date of the Court sale, it is now necessary to examine the nature of Exhibit G executed by Chick Bommiah on 7-7-41, that is long before theCourt sale. The document of which Ext. G is a copy calls itself a will. It states that the properties have been put in possession of Chick-malliah and there is a direction that Chickmalliahshould discharge the debts due by him and thathe should maintain him and perform his obsequies. It is also stated that he and his progeny might enjoy the properties for ever and concludes by saying that no one else has any interest in the properties conveyed.
6. Two strong circumstances relied on by the appellant for construing the document as a will are, first, that the document calls itself a will and secondly that the executant states that no one has any interest in the property other than himself. It might be stated here that the mere fact that the document calls itself a will does not necessarily make it a will. I may here refer to the decision reported in -- 'Tirugnanpal v. Pon-nammal Nadathi', AIR 1921 PC 89 (E) in which it has been held that
'The mere fact that a document in some places styles itself a Will does not make it a Will.'
As regards the second contention, all that is stated at the end of the document is that no one other than the executant of the document had any interest in the properties mentioned in the document. This does not mean that he intended to continue to have any right in the property after the execution of the document. The fact that the properties were delivered to Chikmalliah in whose favour the document was executed so that he and his progeny might enjoy the properties, clearly indicates that (he document was executed in order to convey immediate transfer of interest in the properties. I may here refer to a decision of this Court, as it is almost on all fours with this case, and that decision is -- 'Konamma v. Kalamma', 52 Mys HCR 187 (F). In that case it was held:
'On a construction of the deed, that though the document is described as a settlement deed, the description at the head of the document is not the controlling factor to construe its legal effect. It is the substance and not the form which is to be looked into; and the deed of settlement in this case was a gift, what was transferred under the document being possession and enjoyment of properties and the transfer being immediate.'
If there is any doubt about the intention of Chick Bommiah in his having executed the original of Ext. G in favour of Chikmalliah, it is made clear that he intended to convey immediately the title to the latter by his having consented to Chickmalliah selling away some of the properties under Exts. L, EBB, MM and MMM referred to above. It is also significant that the document has been executed on a stamp paper of Rs. 37-8-0 which in the case of a will was not necessary. On the whole I feel no doubt that Chikmalliah was the owner of the property at the time of the attachment and sale of the suit property in execution of the decree against him, and that the plaintiff has become the full owner of the property after purchasing it from defendants 4 and 5, who had purchased it in the Court sale.
7. The next point for consideration is the contention of the 6th defendant--the second appellant that he has discharged the debt due by Chick Bommiah. If he has done so, it will be noticed that he did so as he had purchased other properties of Chick Bommiah. In fact, it has not been proved in this case that any such debt has been discharged though it is mentioned in the sale deed in favour of the 6th defendant that part of the consideration has to be utilised for that purpose.
There is, however, nothing to show that he has paid anything more than the amount for which he bought the properties other than the suit property and he cannot lay claim to get from theplaintiff any amount said to have been paid by him in order to discharge the hypothecation debt. Similarly, the claim for improvements has not been made out. In the result, I hold that the learned Subordinate Judge was right in decreeing the plaintiffs suit. This appeal stands dismissed with costs and the judgment and decree of the learned Subordinate Judge are confirmed.
8. Appeal dismissed.