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Marukkolandayammal Vs. the Secretary of State for India in Council, Represented by the Collector of Salem and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1932Mad664; (1932)63MLJ249
AppellantMarukkolandayammal
RespondentThe Secretary of State for India in Council, Represented by the Collector of Salem and anr.
Cases ReferredDebi Bakhsh Singh v. Habib Shah
Excerpt:
- - ) for the view that failure to give notice under section 25 is only an irregularity. but this case has not been followed on this point in subsequent decisions and the better opinion in this court is as stated above......registered pattadar was long ago dead. according to the act the demand notice and attachment and sale notices could not be issued to his widow unless her name was put on the register. in this state of facts, the demand notice under section 25 and the notices of attachment under section 27 and of sale under section 36 were sent addressed to chinnaswami chetty. the return to these notices is what was to be expected. the return to the demand notice, dated 25th january, 1922, reads 'as the pattadar is not present this was affixed to the palmyra of the land'. to the attachment notice it is that 'the pattadar mentioned herein does not reside in the village. hence the notice was affixed on the land on 14th june, 1922, and proclamation made by torn torn'. the sale notice under section 36 is to.....
Judgment:

Krishnan Pandalai, J.

1. The question in this case is whether a sale of land for arrears of revenue under Act II of 1864, all the proceedings in which were conducted after the death of the defaulter in the register and without the prescribed notices being given to any living person as defaulter, is valid. There is no direct authority on the point though it must have occurred frequently.

2. The facts are not in dispute. Chinnaswami Chetty, who died about 10 years before the suit, was the registered pattadar of field No. 101, 4 acres 9 cents in extent, in Tattampatti village in Krislmagiri Ta'luq in Salem District. The plaintiff is his widow. lie and his widow lived in Kallavi village in Uttankarai Taluq about 10 miles from the property.

3. After Chinnaswami Chetty's death the register was not corrected as it should have been by the Collector under Regulation XXVI of 1802. But the village officials were content to collect the revenue from the plaintiff who paid it till fasli 1330. In fasli 1331 there was an arrear of Rs. 22-5-4 out of the annual assessment of Rs. 25-12-0. The plaintiff alleged in the suit that the Village Munsif was scheming to acquire the property and with that object made her believe that there would be a remission of revenue that year and hence she did not pay in time and that taking advantage of this the sale was brought about secretly by the Village Munsif at which the 2nd defendant, a cousin of his, bought the land for Rs. 310, a gross under-value. This part of the case is however not accepted by the Lower Courts and is not material. What is material however is that the Village Munsif knew, as found by the lower appellate Court, that the registered pattadar was long ago dead. According to the Act the demand notice and attachment and sale notices could not be issued to his widow unless her name was put on the register. In this state of facts, the demand notice under Section 25 and the notices of attachment under Section 27 and of sale under Section 36 were sent addressed to Chinnaswami Chetty. The return to these notices is what was to be expected. The return to the demand notice, dated 25th January, 1922, reads 'As the pattadar is not present this was affixed to the palmyra of the land'. To the attachment notice it is that 'The pattadar mentioned herein does not reside in the village. Hence the notice was affixed on the land on 14th June, 1922, and proclamation made by torn torn'. The sale notice under Section 36 is to the effect that the undermentioned lands selected out of those attached in satisfaction of arrears of land revenue by Chinnaswami Chetty of Tattampatti, the present registered landholder and a revenue defaulter, will be sold on 18th July. The return to this notice is that as the pattadar mentioned herein does not reside in the village the notice was affixed on the land and publication made by torn torn and a-copy served by affixture on the land. The sale took place on 18th July when the 2nd defendant, a cousin of the Village Munsif, was the highest bidder for Rs. 310. The Collector duly confirmed the sale on 21st September, 1922 and put 2nd defendant in possession. The plaintiff on 16th November, 1922 and 28th November, 1922, filed objection petitions to the Collector who rejected them on 9th January, 1923. This suit was brought on 28th July, 1923.

4. The defence of both defendants was in substance that the sale had been duly conducted under the Act and that whether this is so Or not, the suit was barred by limitation as it was not brought within six months from the date of the cause of action. The plea of limitation will not avail unless the sale proceedings were conducted under the Act in accordance with the provisions of the Act in essential procedure such as gives jurisdiction for the sale - Ravala Nagamma v. The Secretary of State for India 1913 M.W.N. 75. There is a clear distinction between irregularities in publishing and conducting the sale in which case the suit must be brought within the six months prescribed by Section 59 and essential preliminary steps which are necessary to give the revenue authorities jurisdiction to conduct the sale, the omission of which makes the sale null and void, in which case Section 59 does not apply. A notice under Section 8 in case of movables and under Section 25 in case of immovables is of the latter class. The absence of such notice makes the whole of the subsequent procedure for sale null and void : M ekaperuma v. Collector of Salem (1889) I.L.R. 12 M. 445 and Bommayya Naidu v. Chidambaram Chettiar (1899) I.L.R. 22 M. 440 at 446 : 9 M.L.J. 190. The Government Pleader relies on Venkata v. Chenqadu (1888) 12 M. 168 at 176 (F.B.) for the view that failure to give notice under Section 25 is only an irregularity. But this case has not been followed on this point in subsequent decisions and the better opinion in this Court is as stated above. In Vadlur Chinna Nagi Reddi v. Devincni Venkataramiah (1917) 7 L.W. 468 which followed Venkata v. Chengadu (1888) 12 M. 168 at 176 (F.B.) the other cases abovementioned were not referred to. It does not appear from the report in Narayanan Nambudri v. Damo-daram Nambudri (1893) 4 M.L.J. 79 in what respect the sale was not duly notified and what was the irregularity. The case was really one of alleged fraud in bringing about the sale. In Rajah Gounden v. Rajah Gounden (1893) 4 M.L.J. 85 the sale was in contravention of Regulation X of 1831 which prohibits the property of minors from being sold for arrears of revenue and it was held that notwithstanding this the sale could not be attacked except in a suit brought within 6 months. This decision is no longer law in view of the Full Bench decision in Swaminatha Aiyar v. Govindaswami Padayachi (1918) I.L.R. 41 M. 733 : 34 M.L.J. 536 (F.B.) that a sale of a minor heir's properties after his father's death for arrears of revenue in contravention of Regulation X of 1831 is ultra vires, that this is not cured by the minor's mother's name being entered in the register as the registered pattadar as it is the duty of the Collector under Regulation XXVI of 1802 to enter the name of the minor as the proper owner and that a suit to set aside such a sale is not governed by Section 59 of the Act.

5. This being the effect of not giving a notice of demand under Section 25, the only point left is whether it makes any difference that a notice was addressed to a dead man and affixed to the property on the wholly futile ground that 'the pattadar does not reside in the village' or that he is 'not present'? It seems to us that the whole procedure in connection with sale of immovable property is based on the assumption that there is 'a defaulter,' i.e., in the case of a human being a living person who is in default. It is the duty of the Collector to maintain the land registers correctly. In this case the village officers knew that the pattadar had long ago died and there appears to have been no valid reason why the register was not corrected before the sale of land was decided upon. However that may be, to go through, with the name of a dead man, the procedure intended for giving living men a chance of saving their property is a farce and a futility. The Government Pleader suggested that as it has been held in Venkanna Iyer v. The Secretary of State for India 1913 M.W.N. 494 that the modes of services of the notice mentioned in Section 25 are independent, it is open to the revenue authorities to choose any one of the modes prescribed and that in this case the last mode of affixing the notice to a conspicuous part of the land was selected and that that is a sufficient compliance with the law. In the first place in the decision relied on, both Judges did not lay down the proposition contended for, as one of them did not think it necessary to decide it. But whether the modes of service are dependent or independent, we have no doubt that all of them equally contempla. that the defaulter for whose information the notice is intended is alive. The object of sending a notice, however it may be served, is that the person notified may know the thing notified. How can a notice be intended for a dead man? A similar situation to the present arose in Debi Bakhsh Singh v. Habib Shah (1913) L.R. 40 I.A. 151 : I.L.R. 35 A. 331 : 25 M.L.J. 148 (P.C.) in which a suit was dismissed for default of appearance of the plaintiff, the truth being that before the date of hearing the plaintiff had died and on that day his son was engaged in the funeral ceremonies. The Privy Council set aside the order saying that it is vitiated by applying to a dead man orders and rules applicable to a living man. We think that that is the vice of the sale proceedings in this case which in our opinion were of no force and effect by reason of the absence of the fundamental requisite for giving the revenue authorities jurisdiction to conduct a sale, i.e., that there should be a defaulter living who can receive the notices and. avoid the sale by payment of the arrears. The sale was therefore void and Section 59 does not stand in the way.

6. The 2nd respondent asked us in case we held against the sale that the purchase money may be directed to be returned. The Collector will no doubt pass the proper orders in case the sum is still with Government and we need not add that it will be open to him in case of need to take steps in accordance with law to recover any arrears of revenue.

7. The decrees of the Lower Courts are reversed and the plaintiff will have a decree declaring that the revenue sale, dated 18th July, 1922, of the suit property is void and of no effect and directing the 2nd respondent (2nd defendant) to deliver possession of the property to plaintiff with mesne profits from the date of suit to date of delivery at a rate to be determined in execution. The plaintiff will have her costs throughout from the defendants.


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