M. Sadanandaswamy, representatives
1. In R. S. A. 285/68, the appellants are the legal representatives of the 6th defendant and respondent No. 1 is the plaintiff. Respondents 2 to 6 are the defendants 1 to 5. In R. S. A. 576/66 the appellants are defendants 3 and 4, respondent 1 is the plaintiff and respondent 2 is the second defendant. According to the plaintiffs, the suit lands bearing survey Nos. 76 and 80 of Hirebevannur village in Indi Taluk, originally belonged to three brothers. Bheema Rao. Bavan Rao and Ranga Rao, sons of Panduranga Rao. They were living separately and they were enjoying the usufruct of the lands separately. Bheemarao had incurred a debt on a promissory note with the plaintiff. The plaintiff obtained a decree against him in Civil Suit No. 7/30 for recovery of money due on the pronote. On 16-1-30, there was an award decree and it created a charge on the undivided l/3rd interest of Bheemarao in the suit lands for the amount due to the plaintiff under the decree. After passing of the award decree Bheemarao died. The plaintiff filed the execution darkast No. 18/42 against Sahurao son of Bheemaro. Sahurao died in about the year 1931-32 and his widow Padmavathi Bai was brought on record. She died in the year 1935 and her daughter Indirabai was brought on record. She also died in 1950, and therefore her husband defendant 1 was brought on record. In the execution proceedings, the l/3rd interest of Bheemarao in the suit lands was brought to sale and it was purchased by plaintiff himself on 6-2-1952 for Rs. 3500/-. He obtained the sale certificate in C. S. 87/54 and took symbolical possession of the properties in C. No. 106/54 on 4-10-1954. Defendants 2 to 4 sold the land survey No. 76 to deceased father of defendant 5 on 4-7-1955. who in turn sold the same to defendant 6 on 5-4-1956. Defendants 2 to 4 are in possession of survey No. 80. Defendant 6 is in possession of survey No. 76. Since the defendants refused to give the plaintiff 1/3rd share in the suit lands, the suit for partition and separate possession of l/3rd share in the two suit lands and for future mesne profits etc.. has been filed. Defendants 1 and 5 remained ex parte.
2. The contentions of the third defendant which were adopted by defendants 2 and 4 as well are as follows:--
The suit lands belong to himself and his two deceased brothers. Bheemarao as well as Sahurao died as undivided members of the joint family. After the death of Bheemarao and his son Sahurao, Bheemarao's brothers became the owners of the suit lands by survivorship. Bheemarao's debt with the plaintiff was not for family benefit and the award decree does not bind the other coparceners, that the sale of the interest of deceased Bheemarao in favour of the plaintiff in the execution proceedings does not bind the other coparceners that the surviving coparceners have not been made parties in Darkhast. No. 18/42, that the daughter of Bheemarao i. e.. Indirabai was brought on record as the legal representative in that execution proceedings, therefore, the Darkhast proceedings and the execution sale do not bind the third defendant and the other surviving coparceners, that Indirabai was not the legal representative of Bheemarao, that Indirabai also gave a statement in the darkhast proceedings that she was not the legal representative, but the plaintiff instigated her and her husband and made her to file the statement that she was the legal representative of Bheemarao that the sale had taken place in collusion, that the sale certificate granted in favour of the plaintiff is hollow, that there was an encumbrance of survey No. 76 and defendants 2 to 4 have discharged the same by selling St to defendants 5 and 6. that even if the sale is binding on defendants 2 to 4. unless the plaintiff pays the amount which the defendants 2 to 4 have paid, the plaintiff cannot recover possession.
3. The contentions of defendant 5 are that the sale of survey No. 76 in favour of defendant 6 is hollow and that the plaintiff has impleaded her unnecessarily in the suit and that the suit may be dismissed.
4, The contentions of defendant 6 are as follows: After the death of Bheemarao, the two undivided brothers of Bheemarao became entitled to the family properties by survivorship. Defendant No. 6 is not aware of the decree in C. S. No. 7/30 or the subsequent darkhast proceedings and the execution sale in favour of the plaintiff, and he does not admit the plaintiff's claim in the suit lands. Defendant 6 learnt that in execution proceedings the plaintiff had not impleaded the proper legal representatives and impleaded wrong persons as the legal representatives and therefore the court sale does not bind him, that the deceased Ajaganappa filed a suit against Bheemarao and obtained a decree in O. S. 114/31 and in that decree a charge was created on the suit property, that in execution of that decree in darkhast No. 12/37. the two suit lands were brought to sale, that defendants 2 to 4 in order to sell the property took permission of the court and sold the suit land S. No. 76 to Ajagananpa and executed a sale deed on 4-7-1955 and gave possession of the land to Ajaganappa and Ajaganappa became the owner of the land, and subsequently Ajaganappa sold that land along with his other properties to defendant 6 on 25-4-1956. Defendant 6 was not aware of the plaintiff's right in the suit land. So, the plaintiff cannot claim a share in S. No. 76 which is in possession of defendant 6 by virtue of Section 41 of the Transfer of Property Act. If it is held that the sale in favour of the plaintiff is binding on defendant 6 as defendant 6 is a bona fide purchaser for value without notice, plaintiff may be given a share in survey No. 80 only equal to his 1/3 share in both the lands since S. No, 80 is more valuable than survey No. 76. If equity is worked out in that manner none of the parties would be put to loss.
5. Both the lower courts held that the plaintiff has become the owner of 1/3 share in the suit lands, that the execution sale in favour of the plaintiff is binding on defendants 2 to 4, that defendants 2 to 4 have not become the owners of suit lands by survivorship that defendant 6 is not a bona fide purchaser of the suit land S. No. 76 for value with notice of the plaintiff's claim, that he is not protected under Section 41 of the Transfer of Property Act. and that the plaintiff is entitled to partition and separate possession of 1/3 share in both the suit lands.
6. Against the decree of the trial court defendants 2 to 4 filed Civil Appeal No. 105/61 and defendant 6 filed Civil Appeal No. 106/61. Both the appeals were dismissed by a common iudg-ment. In this court, defendants 3 and 4 have filed R. S. A. 576/66 and defendant 6 has filed R. S. A. 285/66. Since common questions of law are Involved, both the appeals were heard together.
7. The first question to be decided Is whether on the death of Bheemarao and his son Sahurao, the undivided 1/3 interest of Bheemarao in the suit schedule properties passed by survivorship to his coparceners. If it is held that that it did so pass then the execution proceedings and the court sale would have taken place without impleading the real legal representatives of the judgment-debtor, and the execution sale will not be binding on defendants 2 to 4. If the interest of Bheemarao did not so pass by survivorship to the surviving coparceners, then the sale will be binding on the surviving coparceners defendants 2 to 4 and consequently on defendant 6.
8. Exhibit 92 is the copy of the decree dated 6-1-1930 which shows that a charge was created on the 1/3 share of Bheemarao on the suit properties and three other lands for recovery of Rupees 950/- with interest and it also provided for the realisation of the amount by sale on failure to pay the said amount. After the passing of the decree and before the execution was filed. Bheemarao died and Darkhast No. 89/42 was filed against Sahurao son of Bheemarao. The law on the subject is stated in Mulla's Hindu Law 13th Edition at page 256. Section 229 (2) (ii) reads as follows:--
'(2) The right of a coparcener to take by survivorship is defeated in the following cases:--
(ii) Where the interest of the deceased coparcener has been attached in his lifetime in execution of a decree against him. A mere decree obtained by a creditor, not followed up by an attachment in the lifetime of the debtor, will not defeat the right of survivorship, unless the judgment-debtor stood in the relation of father, paternal grand-father or great grand-father to the surviving coparceners.' This statement of the law was followed by the lower appellate court. The lower appellate court also followed the decision in AIR 1955 Mys 13, wherein it is held that the subsistence of an attachment at the time of the death of a coparcener will preclude the accrual of title by survivorship and that the execution sale in pursuance to the attachment should be deem-ed to have been made to the extent of subsisting attachment. The trial court held that the charge created under the decree had the same effect as an order of attachment, and it prevented the passing of Bheemarao's interest by survivorship. Both the parties seem to have proceeded on the basis in the lower appellate court that the charge created by the decree has the same effect as an order of attachment. The lower appellate court therefore considered only the effect of an order of attachment. Since it is a question of law, the appellants are entitled to urge that the charge created by the decree does not prevent the passing of the undivided interest of Bheemarao in the suit properties to his surviving coparceners on his death.
8-A. In (1879) 6 Ind App 88 (PC), (Suraj Bunsi Koer v, Sheo Proshad Singh) it was held that:--
'The execution proceedings under which the mousah had been attached and ordered to be sold had gone so far as to constitute in favour of the judgment-creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be defeated by his death before the actual sale. They are aware that this opinion is opposed to that of the High Court of the North Western Province already referred to. But it is to be observed that the court by which that decision was passed does not seem to have recognised the sizable character of an undivided share in joint property which has since been established by the before-mentioned decision of this tribunal in the case of Deendyal Lal, (1877-4 Ind App 247) (PC). If this be so, the effect of the execution sale was to transfer to the Respondents the undivided share in eight annas of mousah Bissumbhurpore, which had formerly belonged to Adit Sahai in his lifetime; and their Lordships are of opinion that notwithstanding his death, the respondents are entitled to work out the rights which they have thus acquired by means of a partition.'
This decision was explained in (1882) ILR 4 Mad 302 (B. Krishna Rau v. Lakshmana Shahbhogue) wherein it was held that the Privy Council had in effect pronounced that the interest of the judgment-debtor had by the attachment during his lifetime been brought under the control of Court for the purpose of executing the decree so as to preclude the accrual of title by survivorship in the event of the death of the judgment-debtor before an order for sale was made. In (1907) ILR 30 Mad 413 (Shankaralinga Reddy v. Kandasami The-van) it was held that-
'by virtue of the attachment the plaintiffs acquired a right to have the whole of the attached property applied in satisfaction of their debt if no other creditors came forward, and in any case to have a rateable proportion as applied:'
It is in this sense that the attaching creditor is said to have a charge on the attached property and to prevent the attached property passing by survivorship. In AIR 1914 PC 129. (Ragunath Das v. Sundar Pas Khetri) it was held that the attachment in execution of a money decree followed by an order for sale does not confer on the judgment-creditor any charge on the land, that an attachment prevents and avoids any private alienation, but does not invalidate an alienation by operation of law such as is effected by a vesting order under the Insolvent Debtors Act of 1948, and an order for sale though it binds the parties does not confer title. The observations in (1879) 6 Ind App 88, were considered in . (Hans Raj v. Dhanwant Singh). It was held that attachment of property in execution of a decree confers no title on the attaching creditor, but merely prevents a private alienation of the attached property: Relying on the observations in AIR 1914 PC 129 and . it is urged on behalf of the respondents by Sri Swamy, that an order of attachment does not create a charge and that a charge created by the decree in the case stands on a higher footing as far as the decree-holder is concerned than an order of attachment in the course of the execution proceeding. On the other hand, it is contended by Sri Savanur the learned counsel for the appellant, that courts have held that it is only in the case of an order of attachment that the passing of the title by survivorship is arrested and that the creation of a charge by a decree cannot have the same effect: The appellant relied on the decision in : 2SCR866 (J. K. (Bom.) P. Ltd. v. New Kaiser-1 Hind Spg. and Wvg. Co.), wherein the difference between a charge and mortgage is explained as follows:
'While in the case of a charge there is no transfer of property or any interest therein, but only the creation of a right of payment out of the specified property, a mortgage effectuates transfer of property or an interest therein. No particular form of words is necessary to create a charge and all that is necessary is that there must be a clear intention to make a property security for payment of money in praesenti.'
In Mulla's Transfer of Property Act, 5th Edition, page 616, it has been stated that:
'A mortgage is a Jus In Rem, a charge a Jus Ad Rem and the practical distinction is that a mortgage is good against subsequent transferees and a charge is only good against subsequent transferees with notice.'
Under Section 100 of the Transfer of Property Act, it is provided that where immovable property of one person Is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property, and that all the provisions of the Act which apply to a simple mortgage shall, so far as may be. apply to such charge. It is provided under Order 34, Rule 15 of the Code of Civil Procedure, that all the provisions of Order 34 which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title deeds within the meaning of Section 58. and to a charge within the meaning of Section 100 of the Transfer of Property Act. The right of survivorship is defeated where the deceased coparcener has sold or mortgaged his interest. It is also defeated where the interest of a deceased coparcener is attached in his lifetime in execution of a decree against him. Under S. 64 of the Code of Civil Procedure, it is provided that where an attachment has been made any private transfer or delivery of the property attached or of any interest therein shall be void against all claims enforceable under the attachment. If an order of attachment has the effect of preventing the undivided interest of a coparcener from passing to the other coparceners by survivorship on his death, there is no reason why a charge created by a decree should not have the same effect. In the present case, it has been held by the lower appellate court that the 6th defendant at the time of purchase of survey No. 76 from Ajaganappa knew about the rights of plaintiff i. e.. about the attachment and the court sale etc., with respect to the suit lands, and that the 6th defendant is not a bona fide purchaser for value without notice. It is true that an order of attachment does not create a charge on the properties. It is also true that a charge is not on the same footing as a mortgage because, in the case of a mortgage, the interest in the immoveable properties is transferred though no such transfer takes place in the case of a charge. But a charge is certainly oi equal consequence if not standing on a higher footing than an order of attachment. Hence the finding of the lower court that the undivided interest ol Bheemarao did not pass by survivorship to his coparceners is correct. Hence it was not necessary to imp cad the surviving coparceners as the legal representatives of the deceased judgment-debtor in the execution proceedings. The Court sale is therefore binding on the defendants. This finding of the lower appellate court is therefore confirmed.
9. In (1900) 27 Ind App 216 (PC), Malakarjun Bin Shidaramappa Pasare v. Narhari Bin Shivappa, it was held that an execution sale cannot be treated as a nullity if the court which sells has jurisdiction to do so, and that an execution court does not lose jurisdiction to sell because it serves notice on a person who does not represent the deceased judgment-debtor and afterwards erroneously decides that he does, and that such a decision is valid unless set aside in due course of law. In that case, one Nagappa was the judgment-debtor. His nephew Ramalinsappa was brought on record as the legal representative of deceased Nagappa. He was not his heir since the family had been divided. Ramalingappa stated that he was not Nag-appa's heir and that his heirs are his daughters, the plaintiffs in the subsequent suit. His objections were overruled and the properties were sold in execution proceedings. It was observed by the Privy Council as follows :
'The code goes on to say that the court shall issue a notice to the party against whom execution is applied for. It did issue notice to Ramalingappa. He contended that he was not the right person, but the court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the court was exercising its jurisdiction. It made a sad mistake it is true; but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however, wrong, cannot be disturbed. The real complaint here is that the execution court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if he knows the facts: and that if he is to be held bound to inquire into the accuracy of the court's conduct of its own business, no purchaser at a court sale would be safe.'
It was therefore held that it was necessary for the plaintiffs, the heirs of Nag-appa, to have the court sale set aside and that the suit to set aside such a sale must be filed within one year under Article 12 (a) of the Limitation Act, 1877.
10. In this case, an objection was filed by the court guardian of Indira Bai on 1-3-1946 marked as Ext. 80 in which it was stated that she was not the legal representative. that Rangarao and his sons and Baban Rao and his son the surviving coparceners of deceased Bheemrao were the legal representatives. The execution court overruled the objections by its order dated 24-1-1949 which is marked as Ext. 71. The respondent urged that the principle stated by the Privy Council in (1900) 27 Ind App 216 (PC) would apply to the facts of this case and the execution sale would be binding on the surviving coparceners even if it is to be held that the undivided interest of Bheemarao passed by survivorship to his surviving coparceners on his death. But the appellants contended that the decision in (1900) 27 Ind App 216 (PC) is no longer good law in view of the observations in : 1SCR479 (Nani Bai v. Gita Bai). In that case, the plaintiff was the daughter of one Gundi who had been sued as original defendant, and after his death, his place was taken by Sadashiv as his legal representative. In execution of the decree the properties were purchased. It was contended that unless the sale was set aside, it would bind Gundi or his successor-in-interest, the plaintiff. The decision in (1900) 27 Ind App 216 (PC) was relied on by the purchaser as an authority for the proposition that even if the property was sold by substituting a wrong person as the legal representative of the judgment-debtor, the sale would bind the estate of the judgment-debtor as much as if the right legal representative had been brought on the record of the execution proceedings. That decision of the Privy Council was distinguished on the ground that the executing court in that case had been invited to decide the question as to who was the legal representative of the judgment-debtor and the court after judicial determination of the controversy had brought on record the person who was adjudged to be the true legal representative and that the sale was held to be of the property of the judgment-debtor through his legal representative after the adjudication of the court. But in the case decided by the Supreme Court. Gundi the original defendant had died and had been without controversy substituted by Sadashiv and it was held that since it was a money sale, it passed only the right, title and interest of Sadashiv. if at all and that Malkarjan's case, (1900) 27 Ind App 216 (PC) was of no assistance to the appellants. The Privy Council case was also distinguished on the ground that the real legal representatives were not heard before the order was passed by the execution court. It is not necessary in the present case to decide if the defendants 2 to 4 are bound by the sale by virtue of the order Ext. 71 since I have already held that the court sale is binding on the defendants.
11. It was next contended on behalf of the appellants that the suit filed by the plaintiff is not for general partition and since the suit is only for partition and possession of the 1/3 share of the deceased Bheemarao. in only two of the properties, the plaintiff has to fail. The lower appellate court came to the conclusion that though there may be other properties standing in the name of defendants 2 to 4, there is no evidence to show that those properties are joint family properties. It also held that since the defendants had not taken this plea in the trial court, they should not be allowed to urge the same for the first time in appeal. The contention urged on behalf of the appellants relates to questions of fact and hence, the lower appellate court was right in refusing to allow the appellants to raise this contention for the first time in appeal. The appellants cannot now be allowed to urge this ground.
12. Hence, these appeals fail and are dismissed with costs.