1. This suit was brought by one of the reversioners to the estate of one Muruga Pillai for a declaration on behalf of himself and defendants 6and 7 that the private sale of items 1 to 8 in the plaint schedule and the Court sale of items 9 to 11 during the lifetime of Muruga Pillai's widow (1st defendant) are not binding beyond the life time of the widow, who died during the pendency of the appeal in the lower appellate Court. The District Munsif dismissed the suit in toto.
2. In appeal the Additional Subordinate Judge held that the Court sale of items 9 to 11 was void and gave the plaintiff a decree accordingly. He held that the private sale of items 1 to 8 by the widow under Ex. B was binding on the reversioners to the extent of Rs. 1,000 only and made that amount a charge on these items excepting item 5 and half of item 8.
3. The learned Subordinate Judge's reason for holding the Court sale to be void was that it took place on January 17th 1916 after Muruga Pillai had died on December 16th, 1915, and that no representatives of the deceased owner were brought on the record. He was of opinion that the Court had no jurisdiction to sell the properties of a deceased person without any representatives being brought on the record and in support of this view he cited Ramaswami v. Bagirathi (1883) .L.R. 6 M. 180, Krishnayya v. Unnissa Begam (1891) .L.R. 15 M. 399, Groves v. Administrator-General (1898) .L.R. 22 M. 119 and Rayarappan Nambiyar v. Malikandai Aketh Mayan : AIR1914Mad297(2) . Besides these cases there is a recent decision of a Bench of this Court in Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 in which Ramesam, J., in holding that a sale in execution carried out against a dead person (or no person as he says) was void and should be regarded as a nullity and had not got to be set aside, observed that it was 'opposed to all notions of justice to allow legal proceedings to be taken against an estate without there being some one on the record to represent the estate.' I presume that the learned Judge when he used these words had in his mind the principle of audi alteram partem which in Narayana Kothan v. Kalianasundaram Pillai (1895) .L.R. 19 M. 219 was spoken of as a principle which could not justifiably be disregarded except where it was necessary to do so in order to protect bona fide purchasers at Court sales. If any order is passed by an executing Court against a party without notice being given to him of the application which gave rise to the proceedings, I entirely agree that the party behind whose back such proceedings are taken, will not be bound by the order. Further, if process is issued without the notice, which Order 21 Rule 22 prescribes in cases where the judgment-debtor is dead or the decree is more than one year old, I consider that the want of notice might constitute a material irregularity entitling a person whose interests have been affected, to apply either under Order 21 Rule 90 or by suit to have any sale of property that has been held upon the decree-holder's application set aside. But if the decree-holder has done all that the law requires him to do and if the judgment-debtor or one of the several judgment-debtors, where there are more than one, happens to die during the course of the execution of the sale warrant, or, it may be, while the auctioneer is actually holding the auction, with due respect I tail to see how the sale is invalidated by the accident of the owner's death before the sale is completed. It has been suggested that as soon as a judgment-debtor dies his interest in the property passes to his legal representatives, and that the law nowhere permits the sale of a dead man's assets. On the other hand Sections 50 and 53, Civil Procedure Code, speak of 'the property of the deceased and Section 50 provides for decrees being executed against such property in the hands of legal representatives. Although it may not be accurate to speak of a dead man as owning property, it is well understood that in law there are estates of deceased persons. The definition of 'legal representative' in Section 2, Clause 11, C.P.C. speaks of such estates. So long as Order 21, Rule 22(2) permits art executing Court to dispense with notice for reasons to be recorded, it is difficult to see how the issue of process without notice and without recording reasons would affect the jurisdiction of the Court or would be more than an irregularity. The operation of Order 22, Rule 4, which provides for the legal representatives of defendants who die during the pendency of a suit being brought on the record, has been excluded from execution proceedings. So a decree once passed does not become barred or incapable of being executed by reason of the death of a judgment-debtor, nor do execution proceedings abate owing to the failure of the decree-holder to bring the legal representatives of a judgment debtor on the record. Order 21, Rule 22 is the only provision which deals with legal representatives of parties to decrees and that only applies to the commencement of execution proceedings. The legal representatives of judgment-debtors, who die during the course of the processes of Court being executed, are able to watch public sales without being personally served with notice. When the law only prescribes the issue of notice to them at the commencement of execution proceedings, they cannot claim as a matter of right to have fresh notice if their representation of the deceased estate commences during the progress of the carrying out of the processes of the Court, nor are they justified in treating such processes as invalid for want of jurisdiction on the part of the Court and its officers. In my opinion the view taken in Raghunathaswami Aiyangar v. Gopala Rao : (1921)41MLJ547 that a sale in execution carried out against a dead person is per se void is based on a fallacy, and I think we are bound to follow the Judgment of the Privy Council in Malkarjun v. Narhari I.L.R. (1901) B. 337 (P.C.) in preference to the decision of a Bench of our own Court. Their Lordships distinctly say that a judicial sale is not a nullity if it is held without a notice being given to the proper legal representative of a deceased person. They observe that to treat such an error (that of serving with notice a person who did not legally represent the estate) as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. They add that strangers to a suit are justified in believing that the Court has done that which by the directions of the Code it ought to do. They point out that when a Court tries a suit without a debtor or his estate being subject to its decree it actually never possesses the jurisdiction which it purports to exercise, but it is a different matter when the Court has by its decrees established the debtor's liability and is in the process of working it out against his estate.
4. My learned brother Ramesam, J. distinguished this case on the facts from those in Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 . He observed that in Malkarjun v. Narhari I.L.R. (1901) B. 337 tin application was made to bring the legal representatives of the deceased judgment-debtor on the record, the Court received the application and did issue notice to the party named as the heir. Only it issued notice to the wrong heir. But in the case before him he said that the procedure laid down by the Code was not followed. He does not state what procedure he means, but from what precedes he can only mean that general obligation of bringing some one on the record at every stage to represent the estate of the judgment-debtor. I have tried to show already by a reference to Order 22, Rules 4 and 12, Civil Procedure Code that, there is no statutory obligation of such a kind cast upon decree-holders during the processual stages of execution of their decrees. The above are my reasons for considering that the Subordinate Judge was wrong in reversing the decree of the District Munsif and that we should now restore the trial Court's decree so far as these items are concerned. But some of the reported decisions relied on by the Subordinate Judge and some quoted in the arguments in this Court remain to be noticed.
5. The Judgment in Ramaswami v. Bagirathi (1883) .L.R. 6 M. 180 is a very short one. The learned Judges do not say that the sale was a nullity, but they set it aside on the ground that the further process of sale could not legally issue without some representatives of the deceased judgment-debtor being on the record. In revision they reversed the order of a Subordinate Court which confirmed a sale under Section 312 of the old Code (Order 21, Rule 92 of the present Code). It is not clear from the report whether the order for sale was passed behind the back of the legal representatives. If that was the case, they naturally objected under Section 311 to its legality.
6. Biyyakka v. Fakira (1889) .L.R. 12 M. 211 is an authority for the proposition that if a judgment-debtor dies between an order for possession being made under Section 318, Civil Procedure Code (now Order 21, Rule 95) and being executed, there is no necessity to bring his legal representatives on record between that date and the date of executing the order. This supports the view I have taken, the difference being only in the nature of the decree to be executed.
7. In Krishnayya v. Unnessa Begum I.L.R.(1892) M. 399 the omission to bring legal representatives on the record is treated not as making the sale void but as being a material irregularity which the learned Judges say must necessarily cause substantial injury to the legal representative. (Why this is necessary is not made clear).
8. In Narayana Kothan v. Kaliyanasundaram Pillai (1896) .L.R. 19 M. 219 the confirmation of a sale without notice to a judgment-debtor, who had been declared insane after the decree and before the sale, is treated as an irregularity but not as making the sale void. In Groves v. Administrator-General I.L.R. (1898) M. 119 , Boddam, J. repeats the fallacy about the sale of a dead man's property passing no rights to the purchaser but in the result the sale was not treated as a nullity, but it was set aside in revision of an order passed in execution. Rayarappan Nambiar v. Mallikandai Akketh Mayan : AIR1914Mad297(2) follows Ramaswami v. Bagirathi I.L.R. (1883) M. 180 and Groves v. Administrator-General I.L.R. (1898) M. 119 and attempts to distinguish Mallikarjun v. Narhari (1901) I.L.R. 25 B. 337 (P.C.) as being a case of a bona fide purchaser. It is not clear whether there was an order for sale made in this case without notice to the legal representative of the deceased mortgagor. If an order of Court was made without notice to the party concerned, the decision may be right.
9. Sheo Prasad v. Hira Lal (1890) .L.R. 12 A. 440 the judgment of a Full Bench of five Judges (one dissenting) dissents from Ramaswami v. Bagirathi I.L.R. (1883) M. 180 and refutes the theory that the death of a judgment-debtor would cause an attachment to abate or make it necessary for a judgment-creditor to take steps to keep the attachment alive. The observations of Edge, C.J. at p. 446 are very pertinent to the present case. H says 'I do not find in the Code of Civil Procedure any provision requiring notice to be given personally to a judgment-debtor or his legal representative of a sale of property under atachment.
10. 'To hold otherwise would be to impose upon the purchaser at an execution sale under a decree, the necessity of ascertaining before he paid the purchase money whether the judgment-debtor was alive at the actual moment when the sale took place, on the risk of losing the purchase money which he paid and the property in respect of the purchase of which that money was paid, and would in any event render it difficult for such a purchaser to maintain his title under his sale certificate if subsequently challenged by the legal representative of the deceased judgment-debtor the exact date of whose death it might be impossible for the purchaser to ascertain or prove.'
11. In Aba v. Dhondn Bai I.L.R. (1895) B. 276 one of the learned Judges (Jardine, J.) follows Sheo Prasad v. Hira Lal I.L.R. (1890) A. 440 and the other (Ranagle, J) prefers the Madras view. This was prior to the Privy Council decision in Mallikarjun v. Narhari I.L.R.(1901) B. 337 which settled the question.
12. Gopal Chunder Chatterjee v. Gunamoni Dasi I.L.R. 20 C. 370 treats the issue of a notice to the legal representative of a deceased judgment-debtor as a condition precedent to the issue of a warrant of execution. This is the view about jurisdiction in execution matters which the Privy Council condemn as being calculated to introduce great confusion into the administration of the law.
13. Premmoyi Chowdhrani v. Preonath Dhur (1896) .L.R. 23 Cal. 636 follows Sheo Prasad v. Hira Lal (1890) .L.R. 12 A. 440. The learned Judges observe that the omission to place on the record the heir of a judgment-debtor who died during the course of execution did not vitiate the sale but was at most an irregularity.
14. In Khiarajmal v. Daim (1905) IL.R. 32 C. 296 there was a sale of the estate of a deceased man which estate was not represented in the suit itself. This made the sale of property without jurisdiction and null and void. This is not an authority on the legal consequences of failure to get representation of a deceased judgment-debtor's estate in execution, but it belongs to the first class of cases described in Mallikarjun v. Narhari I.L.R. (1901) B 337 where a defendant does not come under the jurisdiction of the Court that tries the suit and passes the decree.
15. Bepin Behary Beva v. Sasi Bhushan Datta (1913) 18 C.W.N. 766 is another case that follows Sheo Prasad v. Hira Lal I.L.R. (1890) A 440 and Mallikarjun v. Narhari I.L.R. (1901) B 337. A sale held when the Court was aware of the death of one of the judgment-debtors was treated not as a nullity but as voidable at the instance of the persons affected. It again was followed in Jagadish Bhattacharjee v. (sic) Sundari Dasya (1919) 23 C.W.N. 608 where the judgment-debtor died after attachment but before the sale and the sale held without his legal representatives being brought on the record was held to be not necessarily invalid but open to attack on the ground of irregularity.
16. In Ruhni Nandan Ghose v. Rajendra Nath Ghose (1920) 61 I.C. 291 the principal defendant died before the preliminary decree was made absolute in a mortgage suit and his legal representative was not brought on the record. The High Court observed that the executing Court had no jurisdiction to sell the property and the decree or sale would be a nullity as against persons who were not properly represented, and might be disregarded. The want of jurisdiction here was in the Court and that tried the suit, not in the executing Court and therefore it was a radical defect like it was in Khiarajmal v. Daim I.L.R.(1905) C 296.
17. These decisions show that, apart from the Privy Council decision in Mallkarjun v. Narhari I.L.R. (1901) B 337, the balance of authority is in favour of the view taken in Sheo Prasad v. Hira Lal I.L.R.(1890) A 440 and against that in Ramaswami v. Bagiralhi I.L.R. (1883) M. 180, Rayarappan Nambiar v. Malikandi Aketh Mayan : AIR1914Mad297(2) and Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 .
18. As regards items 1 to 8 excluding item 5 which was found by the District Munsif to belong to the 2nd defendant the Subordinate Judge found that the sale of these items was not for a proper price and that out of the sale price of Rs. 1,740 only Rs. 1,000 was received for purposes binding on the estate. I do not think that sales should be revised long after they have taken place on a mere estimate as to what price the property sold ought to have fetched. The mortgages on items 2, 3, 6 and 7 were usufructuary and there was no necessity to sell items 1, 4, 5 and 8 which were not encumbered in order to discharge usufructuary mortgages. When the mortgagee gets the usufruct of the land in lieu of interest the debt does not by lapse of time become an increased burden on the land, but if such mortgaged property is sold outright the reversioners are deprived of the chance of redeeming it. The sale of these items was evidently neither a prudent nor a bona fide transaction. The Second Appeal is dismissed as regards this part of the claim. Each side will pay and receive proportionate costs throughout. The memorandum of objections is not pressed and is dismissed with costs.
19. This Second Appeal arises from a suit brought by a reversioner to have it declared that certain alienations of properties of one Muruga Pillai the last male owner after his death, are not binding on the reversioner. One of the sales so challenged is a Court sale of items 9 to 11, in execution of a decree obtained against Muruga Pillai. These items had been attached in execution of that decree, and ordered to be sold by the Court and the proclamation for sale had been also issued during the life-time of Muruga Pillai. Muruga Pillai seems to have died sometime thereafter and just before the auction sale actually took place; and no one had been added to the record as his legal representative. His widow the 1st defendant was the proper party to be so added. The 2nd defendant who, though a reversioner himself, was not a party to that decree, purchased the properties in Court auction and he claims to be a bona fide purchaser for value and that claim has not been displaced by any finding of the lower appellate Court. No applications under Rules 89, 90 or 91 of Order 21, C.P.C. having been made the sale was in due course confirmed under Rule 92 and a sale certificate issued to the and defendant. The legal representative, the widow has never challenged the validity of the sale but the reversioner, the plaintiff contends that the sale was a nullity and was void because at the time it took place the estate was not represented by any one on the record. The Subordinate Judge has upheld his contention and declared the sale void following Ramaswami v. Bagirathi I.L.R (1883) M. , Krishnayya v. Unnissa Begum I.L.R. (1892) M. 399, Gloves v. Administrator-General I.L.R. (1898) M. 119 and Rayarappan Nambiar v. Malikandi Aketh Mayan : AIR1914Mad297(2) . It may be mentioned that there is further a recent ruling of a Bench of this Court in Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 in support of his view where it was held that 'a sale in execution carried out against a dead person (or no person) is void and should be regarded as a nullity and has not got to be set aside.'
20. This extreme view introduces a most serious uncertainty into Court sales and will tend to further dissuade bidders from coming forward in Court auctions, a result to be avoided if possible. As pointed out by my learned brother it does not seem to be in accord with the principles laid down by the Privy Council in Malkarjun v. Narhari I.L.R. 1901 B. 337 and we must of course follow the former in preference to the decisions of our own Court. In Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 Ramesam, J. has tried to distinguish this case by confining its effect to its own facts; the principles laid down in that case do not however seem to me to be affected by the particular facts here. Their Lordships say that 'if the Court took proceedings wholly without jurisdiction the plaintiffs (the legal representatives) would remain unaffected by them but a decree had been made and partially though to a minute extent executed against Nagappa (the original debtor) and his estate was liable to make good the balance, and that to enforce this liability was within the jurisdiction of the Court.' Then they go on to distinguish the case of Baswantappa v. Rami I.L.R. (1885) B. 86 on the ground that the decree there was itself a nullity They say that in that case 'neither the debtor nor his estate was ever made subject to the decree, the liability was never established and the process of execution had nothing to rest upon' and they point out that 'it is a different matter when the Court has by its decree established the debtor's liability and is in the process of working it out against the estate.' The case of Kkairajmal v. Daim (1905) I.L.R. 32 C. 296 (P.C.) relied on by Ramesam, J. in Raghunathaswami Aiyangar v. Gopal Rao : (1921)41MLJ547 above cited is a similar case where the decree was itself void. Their Lordships proceed to say in Malkarjun's case I.L.R. (1901) B. 337 that 'it was necessary for the plaintiffs to set aside the sale and that the omission to serve notice on the proper legal representative was a serious irregularity.' Now under Order 21, Rule 22, C.P.C. a proviso has been added enabling the Court in certain circumstances to dispense with such notice so that even the non-service of notice may not always be an irregularity. It is clear from Malkarjun's case I.L.R. (1901) B. 337 that when the Court has jurisdiction its sale cannot be treated as a nullity but can only be set aside if at ail for irregularity. I am inclined to agree with the view of Mahomood, J. in the Full Bench case in Sheo Prasad v. Hira Lal (1890) I.L.R. 12 A. 440 (P.C.) that failure to add the legal representative of a deceased judgment-debtor is only an irregularity and that to set aside a sale on the ground of irregularity, it must be shown that it has led to substantial loss or injury otherwise the sale must be supported more especially when the purchaser is a bona fide purchaser for value. I am unable to adopt the view in Krishnayya v. Unnissa Begum I.L.R. (1892) M. 399 that the failure to add the legal representative to the record is a material irregularity which necessarily leads to substantial injury. Such injury must be proved whether the sale is sought to be set aside by an application under Order 21, Rule 90 or by suit.
21. That the failure to add the legal representative of a deceased judgment-debtor to the record after attachment is only an irregularity is the view accepted by the other High Courts and the weight of authority as my learned brother who has dealt with the authorities cited at length points out is in favour of that view. 1 should have however in view of the Madras cases cited referred the point to a Full Bench but the ruling of the Privy Council in Mallikarjun v. Narhari (1890) I.L.R. 12 A 440 (P.C.) renders it unnecessary to do so.
22. Now in the case before us though the suit has been brought within one year as provided in Article 12 it has not been established that any substantial injury has been caused by the failure to add the widow to the execution record. As already stated she does not dispute and she has never disputed the validity of the sale nor has she asserted that by not being added to the record she has been injured by losing any opportunity that she otherwise would have had for getting the sale set aside. For the above reasons I agree with my learned brother that the decree of the Sub-Judge must be reversed and that of the District Munsif restored with regard to items 9 to 11.
23. The next question is as regards items 1, 2, 3, 4, 6, 7 and half of item 8. These items were sold by the widow to the 2nd defendant for Rs. 1,000, Rs. 875 were due under a usufructuary mortgage by Muruga Pillai himself on items 2, 3) 6 and 7 and Rs. 125 were required for 1st defendant's maintenance. The Subordinate Judge finds that the consideration of Rs. 1,000 is binding on the estate. But he holds that the sale was fraudulent as it was for a very inadequate price, the properties being worth at least Rs. 1,740 at the time of the sale and as it was made by the widow very shortly after her husband's death and in favour of her brother's brother-in-law, the 2nd defendant. There was no real necessity to sell all the 7 items to pay off a usufructuary mortgage on only 4 of them. I think therefore that the Subordinate Judge was right in setting aside the sale as fraudulent and giving the 2nd defendant a charge for Rs. 1,000 on the properties. It was not argued that the sale should be upheld as the whole of the consideration for it under the sale deed had been found to be for purposes binding on the estate; but it was only contended that the purchaser should be allowed to pay Rs. 740 more, the deficiency in the price and to the reversioners and the sale should thereupon be affirmed. I do not think that that can be done as the salt is shown to be fraudulent one; this is not the case of a sale, being a proper sale, where a small portion of the consideration is shown to have been not binding on the reversioners.
24. I agree in dismissing the Second Appeal as regards these items and to the order of costs proposed by my learned brother and also to the dismissal of the memorandum of objections with costs.