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Kalimili Radhakrishniah Vs. the Govt. of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 632 of 1977
Judge
Reported inAIR1979AP255
ActsAndhra Pradesh Revenue Recovery Act, 1864 - Sections 5 and 59; Limitation Act, 1908 - Schedule - Article 120; Limitation Act, 1963 - Schedule - Article 113
AppellantKalimili Radhakrishniah
RespondentThe Govt. of Andhra Pradesh and anr.
Appellant AdvocateP. Sreeramamurty, Adv.
Respondent AdvocateP. Krishnareddy, Adv.
Excerpt:
family - mortgage of joint family property - sections 5 and 59 of andhra pradesh revenue recovery act, 1864, article 20 of schedule to limitation act, 1908 and article 113 of schedule to limitation act, 1963 - whether property not belonging to defaulter could be validly sold under provisions of act of 1864 - sale rendered void as property admittedly belonged to plaintiff and not to defaulter as on date of sale - plaintiff was certainly not part of impugned sale and sale rendered void plaintiff entitled to ignore it. - - which is the first defendant in consideration of his having been granted a well subsidy loan of rs. as sankariah did not pay back the amount borrowed by him in 1951 for sinking a well, the suit lands were attached and brought to sale by the tahsildar, venkatagiri..........his share at the partition. it is further not disputed or denied by the defendants that the suit property was brought to sale as belonging to the plaintiff himself and not in the belief that it belonged to loanee, sankariah this is the reason why it was urged in the grounds of this appeal that the sale of the suit property under the act, notwithstanding that it did not belong to the defaulter is void; but somehow this plea which is the most important of the pleas urged in the memorandum of appeal, was not set down as the substantial question of law arising for decision, presumably because of oversight. learned counsel for the appellant has therefore sought the permission of the court to raise this ground as the substantial question of law involved in this appeal and permission has.....
Judgment:

1. This appeal arises out of a suit flied for a declaration that a sale held u/s. 5 of the Andhra Pradesh Revenue Recovery Act, 1864 (hereinafter referred to as the Act) on 2-11-1967 is void and for recovery of possession of certain lands in consequence thereof. The plaintiff in the suit is the appellant before this Court.

2. The facts that led to the institution of the suit out of which this appeal has arisen may briefly be stated. The plaint schedule lands measuring: Ac. 5-86 cents originally belonged to the joint family of which the plaintiff, his two brothers, Raghuramaiah and Sankariah and their father Venkata Subbaiah, were members. Sankariah, the younger brother of the plaintiff, mortgaged the lands belonging to the family in favour of the State. which is the first defendant in consideration of his having been granted a well subsidy loan of Rs. 750/- in about the year 1951. After the death of Venkatasubbaiah, there was partition of the family properties between the plaintiff and his brother in the year 1954 as can be seen from Ex, B.13 which is a registered copy of the partition deed executed on 28-7-1954. As a result of the partition covered by Ex. B. 13, the bulk of the family properties, including the suit lands were allotted to the share of the plaintiff as he undertook to discharge all the liabilities of the erstwhile joint family including the loans obtained from the Government. As Sankariah did not pay back the amount borrowed by him in 1951 for sinking a well, the suit lands were attached and brought to sale by the Tahsildar, Venkatagiri under the provisions of the Act for realising the amount due from Sankariah. The 2nd defendant purchased the lands at the said sale held an 2-11-1967. This sale was confirmed in due course on 5-2-1969 and a sale certificate Ex. B 1 was also issued to the auction purchaser on 31-4-1969. Since the plaintiff became entitled to the lands in question long before they were sold in favour of the 2nd defendant by virtue of the partition of the year 1954, he issued a notice to the 1st defendant questioning the legality of the sale and there after filed the suit for the relief stated supra alleging, among other things, that even the mortgage created by Sankariah for securing the well subsidy loan advanced to him is not valid and binding as he was a minor at the date of mortgage and also because he was only a junior member of the joint family and that the revenue sale of the properties is, in any view, not valid and binding on him since Sankaraiah, and not he was the defaulter within the meaning of the Act. This suit was resisted by the defendant No. 1 on the ground that Sankariah was not a minor at the date on which he borrowed far sinking the well and executed the mortgage, that the plaintiff, is, in any view, not entitled to question the said sale, as he undertook to discharge all the debts including the one contracted by Sankariah in consideration of his having been given the lion's share of the family properties as can be seen from Ex B. 13 and that the suit is, in any view, liable to be dismissed as it is barred by limitation. On a consideration of the evidence adduced in the case, the trial Court found on all the material issues against the plaintiff and dismissed the suit with costs. This decision was confirmed in appeal by the learned District Judge. Nellore, as according to him the plaintiff was bound to discharge the debt contracted by Sankariah from the Government as he undertook, in Ex, B. 13, to pay off all the family debts and was consequently in the position of a trustee, even though he differed from the trial court on the question of limitation. Hence this second appeal by the plaintiff.

3. The substantial question of law said to arise for consideration in this appeal and on the basis of which it has been admitted is 'Whether a junior member of a joint family can bind the joint family for a loan which he has obtained from the Government by mortgaging the joint family property'?

4. I may at once observe that the question formulated at the time of admitting the appeal does not really arise for consideration as it is no part of the defendant's case that a junior member of a joint family can bind the joint family properties for a loan contracted by him and for the re-payment of which he has executed a mortgage in respect of some of the joint family properties. The case of the defendants, on the other hand, is that it is the plaintiff that is Liable to discharge the debt in question, notwithstanding that it was contracted by Sankariah as he undertook to pay oh all the debts owing by the erstwhile joint family in consideration of his having been given the bulk of the properties towards his share at the partition. It is further not disputed or denied by the defendants that the suit property was brought to sale as belonging to the plaintiff himself and not in the belief that it belonged to loanee, Sankariah This is the reason why it was urged in the grounds of this appeal that the sale of the suit property under the Act, notwithstanding that it did not belong to the defaulter is void; but somehow this plea which is the most important of the pleas urged in the memorandum of appeal, was not set down as the substantial question of law arising for decision, presumably because of oversight. Learned Counsel for the appellant has therefore sought the permission of the Court to raise this ground as the substantial question of law involved in this appeal and permission has been accorded to him for the reasons stated above.

5. So, the only substantial question of law that falls to be considered in this appeal is as to whether, property not belonging to a defaulter could be validly sold under the provisions of the Andhra Pradesh Revenue Recovery Act, 1864.

6. It is an undisputed fact that the suit property was sold in exercise of the powers conferred by S. 5 of the Act, Learned counsel for the appellant contends that this sale is void as the property admittedly belonged to the plaintiff and not to the defaulter at the date of sale. Section 5 of the Act lays down:

'Whenever revenue may be in arrear, it shall be lawful for the Collector, or other officer empowered by the Collector in that behalf, to proceed to recover the arrear, together with interest and casts of process, by the sale of defaulter's movable and immovable property, or by execution against the person of the defaulter in manner hereinafter provided.' It is therefore clear that this section empowers the Collector or any other officer empowered by him in that behalf to proceed against property belonging to a defaulter alone. The learned District Judge did not however advert to this; aspect of the contention urged far the plaintiff. The reason which appears to have weighed with him in coming to the conclusion, 'that there was nothing illegal about the sale of property belonging to the plaintiff for realisation of the amount due from Sankariah' is that the former had taken over all the liabilities of the family under Ex. B. 13 and that he is therefore in the position of a trustee. Srirama Murthi v. Official Receiver, Krishna, 1957-1 Andh WR 216 referred to by him in this regard has absolutely no application to the facts of this case as it related to a case of a partition that was sought to be questioned on the ground that no provision was made for payment to the creditors of the family. Even Veeramma v. Appayya, 1956 Andh WR 476 does not seem to lend support to his conclusion as what all was held in that decision is that 'persons not parties to partitions of family arrangements claiming benefits provided for them in such transactions really come under the category of beneficiaries and the arrangements conferring benefits on them are in the nature of trusts.' The State cannot be regarded as coming within the category of beneficiaries since Ex. B.13 does not confer any such benefits on it to give rise to any trust. This apart, the question for consideration is whether the plaintiff is a defaulter within the meaning of the Act to validate the sale held by the 1st defendant in respect of the suit property. Even assuming for a moment that the plaintiff was in the position of a trustee and the State of a beneficiary, it would still not render the sale valid if it is not made in accordance with the requirements of the Act. It is no part of the defendant's case that the plaintiff is a defaulter nor can he be regarded as one such for the reason that he took over the liabilities of the family under Ex. B. 13. The person to whom loan was advanced for sinking the well was Sankariah and so, he alone and not the plaintiff can be regarded as the defaulter for the purpose of this Act. Section 5 of the Act itself gives an indication of the meaning of 'defaulter' though this term has not been defined in the Act as it provided for steps to be taken for the recovery of arrears of revenue by proceedings against movable or immovable properties of the defaulters. Almost every one of the relevant sections in the Act refers to defaulter alone and not to the persons other than the defaulter .If it is proposed to recover the amount from the plaintiff on the ground that he has taken over all the liabilities of the family, the proper remedy, if any, would be to file a civil suit against him but in no event property admittedly belonging to him could be validly attached and sold under the Act far realisation of arrears due from Sankariah who alone is the defaulter in this case. Reference may be made in this connection to an unreported decision of this Court in W. P. No. 6113 of 1973 rendered on 31-7-1975 in which it was held, among other things, that it was not open to proceed against the property belonging to the mother for recovery of arrears of excise revenue due from her son since she was not a defaulter. When the sale was admittedly held under the Act and there is no provision in the Act far proceeding by sale or otherwise against property belonging to any person other than the defaulter, it must be said that the sale of the said property in this case, which belongs to the plaintiff. for recovery of amount due from Sankariah is void and not binding on the plaintiff.

7. It was urged for the respondents that the suit is liable to be dismissed 81 it was not filed within six months from the date of sale as required by S 59 of the Act. I am however afraid that this section cannot be pleaded as a bar to the maintainability of the suit as the language employed in it would clearly show that it is applicable only to case where the suit is instituted by one of the parties to the sale and not when the aggrieved person is a total stranger to the proceedings held under the Act as in this case. The action refers to 'parties' but the plaintiff was certainly not a party to the impugned sale. Further, as it was already seen that the sale is altogether void, the plaintiff can completely ignore it and need not even avoid the sale. So, the suit for declaration in such circumstances would, as rightly held by the Courts below, be governed by Article 120 of the Limitation Act of 1908, by which the suit is governed. I must there fore find that the suit is not barred by limitation.

8. It is true that the undivided share of Sankariah in, the suit property would certainly he liable for the loan contracted by him as the family was joint and not divided at the date on which he created a mortgage in favour of the State for the loan contracted by him; but this by itself does not justify the contention that the sale is in any view not liable to be set aside in so far as it relates to the undivided 1/3rd interest of Sankariah His share of the property; would, no doubt, be liable for the debts contracted by him, but in order to uphold the revenue sale even to the extent of his undivided 1/3rd share. it must be shown that it was held in accordance with the requirement of the Act. But this is admittedly not the case as Sankariah had no notice of the proceedings and also because it is not his undivided share that was attached and brought to sale. The 1st defendant has proceeded in this case on the footing that the property belonged to the plaintiff and not Sankariah, with the result that the latter had no opportunity to put forth his objections, if any, to it. As already stated he had no notice even of the impugned sale. So, it is not possible to disallow the relief claimed by the plaintiff even to the extent of Sankaraiah's undivided share more so because he ceased to have any interest in the property even by the date of the sale on account of the partition evidenced by Ex. B-13. May be that the 1st defendant will be free to initiate proceedings under the Act against Sankariah on the basis of the mortgage executed by him; but the plaintiff's right to ignore the sale already, held and seek an injunction cannot be questioned in the meantime when the procedure prescribed by the Ad was not adopted.

9. In the result, therefore the appeal is allowed and the suit is decreed as prayed for. The parties, pre however, directed to bear their respective costs throughout in the circumstances.

10. Appeal allowed.


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