Pachapagesa Sastri, J.
1. These two second appeals raise questions relating to the validity of rent sales of ryots' holdings under chap. VI, Madras Estates Land Act of 1908. S. A. No 915 of 1946 is by the plaintiff against the judgment and decree of the Subordinate Judge of Tinnevelly in A. S. No. 112 of 1945 confirming the judgment and decree of the District Munsif's Court, Tenkasi in O. S. No. 205 of 1944. S. A. No. 981 of 1945 is filed by defendant 1 in O. S No. 206 of 1944 on the file of the District Munsif's Court, Tenkasi, against the judgment and decree of the Subordinate Judge in A. S. NO. 113 of 1945 reversing the decree of the District Munsif.
2. In Kottayur village of Sivagiri Estate one Sundaram Pillai was a ryot holding patta NO. 406. It comprised amongst others S. No. 220 of the extent of 16 acres and 52 cents. The land-holder was the zamindar of Sivagiri. Sundaram Piliai had two daughters. In 1913 he gifted S. No. 220 to his son-in-law, one Kosalaram. There appears to have been a partition of the family properties amongst the sons of Kosalaram as evidenced by EX. P-2 dated 16th June 1928. By the partition arrangement the plaintiff's father got this property and after his death the plaintiff succeeded to it. It would appear that all along the patta had been standing in the name of Sundaram Fillai though he died somewhere about 1924. The transferee Kosalaram never got the patta transferred in his name. It does not appear that he intimated to the landholder the transfer by Sundaram Pillai. In 1933, for arrears of rent of Fasli 1341 the landholder gave notice of the intended sale of the ryot's holding under Section 112. This is evidenced by Ex. P-6. It reads as follows:
'Sundaram Filial, son of Arunachalam Piliai, ryot and pattadar No. 406 of No. 10 Kottayur village, Sivagiri zamin is informed that a sum of Rs. 87-8-1 is due from him by way of arrears. Unless the above amount is paid within 30 days after the date of the receipt of this notice or unless a claim is lodged before the Collector objecting to the right of sale, the holding mentioned In Col. 7 noted below herein will be sold.' This notice was sent for service on the party and the endorsement of service reads as follows :
'On enquiry made about the person mentioned in the notice (it is found) that he died. His heir is not present in the locality. Hence it has been affixed to the outer door of the house of the above person No, 406.'
The sale notice EX. P-6,(a) dated 16th September 1933 under Section 117 of the Act, is signed by the Revenue Divisional Officer who fixed the date, time and place of the sale also. The sale officer conducted the sale on 25th October 1933 and the property was bought in by the landholder. It would appear that in 1939 the property purchased was assigned to defendant 1 in O. S. No. 206 of 1914 who is the appellant in S. A. No. 981 of 1946. The holding covers two acres now identified as S. NO. 220/A.1. Again in 1934, the landholder initiated proceedings under Section 112 of the Act for alleged arrear of rent for Fasli 1342. The notice is Ex. P-3 dated 29th September 1934. That also is in terms similar to the earlier notice, EX. P-6 and informs Sundaram Pillai of the existence of the arrear and the sale proceedings initiated. The property that was proposed to be sold was two acres in another portion of 3. No. 220 being the western portion in S. No. 220/A-2. This notice Ex. P-3 was returned with the endorsement:
'The addressee mentioned herein died. His proper heir is not present in the locality. Hence the notice issued in the name of the above person has been affixed on the outer door of the house where he resided. Another copy has been suspended by a rope tied to the stick fixed in the land under attachment. Another (copy) has been affixed to the front portion of the Pillayar temple, a public place in the village. It has been published also by tom tom.' The sale notice under Section 117 was settled andsigned by the Revenue Divisional Officer, Koilpatti, who fixed the date, time and place of the sale. The warrant appointing the selling officer is EX. P-3 (b) and the sale was actually effected on 17th February 1936 to one Kandaswami Chettiar who subsequently sold it to defendant 1 in O. S. No. 205 of 1944. The plaintiff instituted the suit for recovery of possession of the properties sold in the two rent sales on 5th May 1944. According to the plaint, the plaintiff was the owner of the properties and without any notice to him the sales had been effected behind his back in an illegal manner and contrary to the provisions of the Madras Estates Land Act. The plaint attacks these sales as invalid, and treating them as nullities the plaintiff wants to recover possession of the properties from the persons in possession thereof namely defendant 1 in each of the cases. Defendant 2, the landholder has been impleaded because he is interested in supporting the rent sales in question.
3. Various grounds were urged in the plaints attacking the validity of the rent sales. Of these ultimately two grounds were pressed during trial and in the appellate Courts. The first ground of attack is that as notices under Section 112 were addressed to Sundaram Fillai who had long ago died such notices are inoperative and cannot be the basis for giving any jurisdiction to the Collector to effect a sale. The sales were accordingly to be treated as null and void. The second ground of attack is that it is not the selling officer who fixed the date, time and place of the sales but it was the Revenue Divisional Officer who did so. This is urged to be a disregard of the mandatory provisions of Section 117 of the Act in consequence of which it is urged the sales are invalid. These two contentions have survived and have to be dealt with now.
4. I may, however, dispose of one or two minor contentious raised, before I deal with these two important questions which have been raised and fully argued before me. It was first urged that the plaintiff Avudainayagam Pillai had himself been recognised as ryot by the land-holder and the sales without notice to him would therefore be invalid. The lower Courts have found on the evidence that there was no such recognition of Avudainayagam Pillai as ryot by the landholder, and as admittedly, neither Kosalram nor Avudainayagam Pillai had given any intimation to the landholder of the change of ownership from Sundaram Pillai to Kosalram the plaintiff was not entitled to be treated as a ryot. This argument therefore fails. One contention that was raised by the respondents was that even if the rent sales should in law be invalid for any reason the plaintiff had no locus standi to file these suits objecting to the sale. It was urged that neither he nor his predecessor having given any notice to the landholder it was only Sundaram Pillai or Sundaram Pillai's heirs that can object to the sale. Reliance was placed on Irulappa v. Veerappan, (1921) 42 M. L. J. 113 : A. I. R. 1921 Mad. 637. I cannot agree with this contention as the plaintiff was the person who was the owner of the holding. It may be that the landholder was entitled to proceed against the registered pattadar in the absence of any notice from the transferee. This does not however amount to a denial of the plaintiff's ownership of the ryoti holding, and if the property of which he is the owner and in possession is taken away from him in pursuance of an alleged rent sale under the Act he is certainly entitled to complain of that wrongful dispossession and file a suit for recovery of possession. The decision in Irulappa v. Veerapan, (1921) 42 M. L. J. 113 : A. I. R. 1921 Mad. 637 does not bear on this point. That only decided that a defendant who had an opportunity of contesting the right of suit under Section 112 on grounds which he could have raised as for instance the non-tender of a patta to him, etc., as required by Section 53 of the unamended Act, now Section 77 (a) after amendment of 1934, and who has not so filed the suit before the Revenue Court cannot plead the invalidity of the sale, in civil proceedings later on. I find the decision in Ponnusami v. Annakamu Servai : AIR1940Mad439 by Wadsworth J. is directly applicable to the facts of the case. I therefore repel this contention.
5. I shall now proceed to deal with the two questions raised and pressed before me. It is now settled law that proper notice under Section 112, Madras Estates Land Act, is a condition precedent for creating jurisdiction in the Collector to sell a ryot's holding under chap. VI. Where there has been no such notice or where such notice is not served in the manner contemplated by the section, rent sales following thereafter have been held by this Court to be void altogether. The decision in Bajitagiripati v. Pedakotayya, 57 Mad. 255 : A. I. R. 1933 Mad. 855, definitely holds that a sale under such circumstances should be regarded as a nullity and not merely as one which is invalid and unlawful and requiring to be set aside by the affected party within the time provided for so doing under the appropriate article of the Limitation Act. It has been contended before me strenuously by Mr. Nethi Subrahmanyam, the learned advocate for the landholder, that this view requires reconsideration by this Court. He relies strongly upon the earlier Full Bench decision in Venkata v. Chengadu, 12 Mad. 168. It dealt however with the Revenue Recovery Act and held that it is only where there is no arrear at all or where a holding on which there is no arrear and not belonging to the defaulter is sought to be sold that there is the defect of jurisdiction and that all other violations of the statutory provisions relating to the holding of a sale are mere illegalities or irregularities which may make the sale unlawful and liable to be set aside but such sales cannot be treated as nullities unless they are set aside. He also relies on Section 104 of chap. VI relating to sales of distrained property which allows a Collector to either go on with the sale or order a fresh proclamation where there is any defect of the kind mentioned in the section of which he was not originally aware but which has been subsequently brought to his notice. I must state however that even with regard to the sales under the Revenue Recovery Act this Court would appear to have taken a view different from Venkata v. Changadu, 12 Mad. 168 in later oases. At any rate it is pointed out in Rajitigiripati v. Pedakotayya, 57 Mad. 255: A.I.R. 1933 Mad. 855 that whatever may be the correct law with reference to sales under Revenue Recovery Act, so far as sales of holdings under Estates Land Act are concerned absence of proper notice under Section 112 is a jurisdictional defect as a consequence of which the sale itself must be treated as a nullity. Although the earlier and later decisions taking the view that such sales are unlawful use the word 'void' it is not quite clear whether it was necessary in those cases to draw a distinction between a void sale in the sense of its being a nullity and an unlawful or illegal sale in the sense that it has to be set aside. Nevertheless, the decision in Bajitagiripati v. Pedakotayya, 57 Mad. 255: A. I. R. 1933 Mad. 855 is too clear and direct for me not to follow it. It seems to have been impliedly adopted in the Full Bench decision in Munisami v. Narasappa : (1941)2MLJ79 where also it may be noted that the suit was filed after the expiry of the period that is fixed under Article 12 for a suit to set aside the sale. In these circumstances I am not free to canvass the matter afresh and I must proceed on the footing that if there is no notice under Section 112 or no notice properly served under Section 112 it is a jurisdictional defect.
6. Turning to the facts of this case, the first thing that has to be noticed is that Sundaram Pillai had died several years before these sales. The patta had however continued to be in the dead person's name. The evidence is not clearly placed in this case before the Courts as to how the rents had been paid in subsequent years, between Sundaram Pillai's death and the period of the rent-sales. As already observed, I must proceed on the footing that the plaintiff Avudainayagam Pillai was never recognised as a ryot by conduct of the landholder and the registered pattadar is Sundaram Pillai, the deceased. The question that arises is whether in such circumstances a notice in the terms of Ex. P.3 and Ex. P. 6 and served in the manner evidenced by the endorsements therein which I have already extracted earlier in this judgment can be said to be notice as required under Section 112 or proper service of such a notice. The method of service under Section 112 was as provided in that section itself prior to the act of amendment of 1934 and after the amendment it is in the manner of Section 72. Section 147 of the Act provides for the validity of the proceedings taken against the transferor where there has been no notice given by the transferor and the transferee to the landholder. This is a case where Sundaram Pillai transferred the holding by a gift deed in favour of the plaintiff's ancestor. This is not a case of devolution by law. Prima facie, therefore, the proceedings taken against a transferor must be taken to be binding against the transferee but for the fact that the transferor has been dead and the proceedings were instituted on a notice addressed to a dead man and served really by affixture in the circumstances set out above in the endorsement on the notices. It has been argued broadly before me that in spite of the fact that the transferor is dead the proceedings under the Estates Land Act are not really concerned with the question of the owners of the property but it is the holding as an abstract entity that is being brought to sale, A distinction was sought to be drawn between the provisions of the Revenue Recovery Act where the moveable and immoveable property of the defaulter is being brought to sale and the provisions of the Estates Land Act where the holding as such is being brought to sale. I cannot agree that in this matter the question who is the owner of the holding, is immaterial. It was on this ground that the decision in Marukkolandayammal v. Secy. of State, 55 Mad. 876: A. I. R. 1932 Mad. 664 relating to a sale under the Revenue Recovery Act where the notice of sale under Section 28 was not given to a living person, the registered pattadar being dead, the sale was held to be null and void, was sought to be distinguished by Mr. Venugopalachari, the learned advocate for one of the auction purchasers. It has been held as a fundamental principle that a man cannot be deprived of his property by proceedings to which he has not been made a party in the sense that notices issued to a dead person are to be taken as notices served on him. It was pointed out in Marukkolandayammal v. Secy, of State, 55 Mad. 876: A. I. R. 1932 Mad. 664 that the provisions of the Act contemplated that the defaulter, the registered pattadar, on whom notice was intended to be served was alive so that the proceedings may bind the owner of the holding though not himself served with the notice. Similarly in sales under the Code of Civil Procedure it has been held that where a judgment-debtor died before the sale and there was nobody on record the sale will be null and void. It was pointed out by the Judicial Committee in Debi Baksh Singh v. Habib Shah, 35 ALL. 331: 40 I.A. 151 that the provisions relating to service of notices contemplate service of notice on living persons and not on persons who are dead. I am of opinion that on a proper construction of Section 147, the word transferor would be applicable only to a living transferor who could be regarded as defaulter and on whom the notice under Section 112 could be served. At any rate where the registered pattadar is dead there must be service of notice on his heirs and legal representatives or on persons on whom the interest has devolved by operation of law. The notice addressed to Sundaram Pillai in the present case cannot, therefore, be taken to be a proper notice so as to give jurisdiction to the Collector to sell the holdings.
7. It is, however, argued for the auction purchasers that in this particular case the notice may be taken to have been accepted by the heirs and served on them because the endorsements show that Sundaram Pillai was dead and the heir of Sundaram Pillai was not present in the locality and therefore the notices were affixed to the house, to the public temple and to the land. It is argued that Sections 78 and 112 would justify the procedure of affixture where the person who is sought to be served could not be served. It is suggested that the reference to the absence of heirs in the locality and the consequent necessity for the affixture which was done in the manner stated is sufficient to show that service by affixture in the present case must be taken to be equivalent to personal service on the heir of Sundsram Pillai. In that view it is argued that if the notices in terms of Ex, P-3 and EX. P-6 were really served on the heirs personally and accepted by them without demur and without raising the objection that the name of the dead man is put in the notice and their names are not mentioned specifically it cannot be open to them to turn round later on and object to the sale on that ground. It is argued that the present case of service by affixture should be taken to be on the same footing as service personally on the heirs although the notice which is served on them discloses on its face, the name of Sundaram Pillai only who was long ago dead. It may be that if actually the notice addressed to a dead person is accepted by his heir at law without objection the heir at law may be estopped from objecting to the legality of the notice. In fact this Court has held that with reference to pattas which are tendered though in the name of the dead person to the heir of such a person as his patta and accepted by him as such without objection are valid. Indeed even a tender of such a patta without actual acceptance has been held to be sufficient: see Kaliappa v. Muthu Vijaya : AIR1927Mad984 and Zamindar of Ettiyapuram v. Sankarappa, 27 Mad. 483. In fact even in the Full Bench decision in Lakshmana v. Aiyasami : (1941)1MLJ1 the patta was in the name of the transferor but it was tendered to the transferee as his patta and accepted by him without any protest. The Full Bench held that the patta was good and the transferee was a defaulter as he had been recognised as a ryot by the landholder. It may be possible to distinguish the case where the notice is issued to the dead man nominally and not accepted by the heir from a case where the notice is accepted by the heir without protest and acquiesced in. It is on these lines that Mr. Jagadisa Aiyar the learned advocate for the appellant in S. A. No. 981 of 1946 sought to support the judgment of the learned District Munsif in his client's favour. I am prepared to extend the principle underlying the tender of pattas in the names of dead persons to their heirs and accepted by them as good to cases of notice also under Section 112. If in this case there had been a personal service on the heirs I should have upheld Mr. Jagadisa Aiyar's contention on this point, on grounds of estoppel. The difficulty however in this case is that there was actually no personal service on the heirs of Sundaram Pillai but there was only an affixture in the mode contemplated by Section 78 for the reason that service could not be effected on such heirs. Mr. Thyagaraja Aiyar vehemently argued that this was a new aspect of the case not presented in any of the lower Courts and it must be open to him to show that service by affixture was in circumstances totally unjustified as there was nothing to show that any bona fide enquiries were made as to who were the heirs of Sundaram Pillai and as to where they were living and as to whether they could not be served personally. He relied on cases which have held that unless there is due diligence in trying to serve personally a defaulter, a mere affixture would not justify the sale. I did not however allow him to raise this point as I thought it raised questions of fact which have not been placed or investigated by the lower Courts, and in a second appeal it is too late indeed to hold on the materials before me that the affixture was improper. At the same time Mr. Thyagaraja Aiyac while reluctantly acquiescing in that ruling of mine forcibly answered by contending that indulgence should not be given to the auction purchasers now to make out a case of service on the heirs whom they never set up in the lower Courts, they all along being content to argue that service by affixture was proper wherever the registered land-holder was dead because he could not be served and therefore the alternative method of affixture was justified. I must admit that there is a good deal of force in Mr. Thyagaraja Aiyar's observations and if I am to decide the case against him I should have hesitated very much before I could allow the new contention raised in the present form to be urged before me. But, on further consideration, I am of opinion that even if a case of personal service on the heirs of Sundaram Pillai of notices addressed to the dead person and accepted by the heirs may give rise to estoppel precluding them from objecting to the sufficiency and legality of its contents it would be straining too much to hold that an affixture should have the same consequence as personal service giving rise to an estoppel by conduct of parties served. Personal service is actual knowledge of the contents of the document and if a person who receives the document sees that it is addressed to a dead man but is tendered to him as service on him and acquiesces in it, it is apparently because he is prepared to condone the reference to the dead man and treat it as addressed to him personally as heir. If he had any objection and if he had mentioned it, it could promptly be corrected and notice with his name put in will be served on him. That is the reason why he cannot object to the service of the writ or notice. But affixture is not exactly actual knowledge. It is only a case where there is constructive knowledge imputed to the man because the means of knowledge are available to him. It would not be just to hold that in such circumstances service by affixture should have the same efficacy as personal service in the sense of giving rise to an obligation on the part of the man to object to the terms of the notice on the ground that the dead man's name is put in. I cannot therefore uphold the contention that in this particular case the notice which is not ordinarily a proper notice addressed to a living person could be treated to be proper notice accepted by the heir as addressed to him. It would follow in my opinion that there is an absence of valid notice under Section 112 of the Act and in the view that I have taken that such sales have been held by this Court to be null and void it would follow that these rent sales are not binding on the plaintiff and the suits ought to be decreed in his favour.
8. This would be sufficient to dispose of the appeals but in view of the fact that the learned counsel have argued the other question relating to the consequence of the disregard of the provisions of S. 117 I may briefly state my views on that question as well. It has been held in this Court in Manickavasaka, v. Chidambaram Pillai, (1940) 1910 1 M. L. J. 20 : A. I. R. 1940 Mad. 185 a Bench decision agreeing with an earlier decision of a single Judge in Kadirvelu Ambalam v. Alagappa Ambalam : AIR1934Mad725 that where the sale officer has not done things referred to in Section 117, Estates Land Act, the sale would be unlawful or illegal although it was a superior officer who actually fixed the terms of the proclamation and the other relevant matters. Consequent on the decision of the single Judge, the old Act was amended and new provisions have been introduced in Sections 116 and 117, Estates Land Act. Section 116 now provides for certain duties being performed by the Collector and Section 117 provides for the selling officer fixing the date, time and place of the sale. In these second appeals one of the rent sales was governed by the provisions of the unamended Act and the other one by the amended Act but in both cases we find that the date, time and place were fixed by the selling officer. It is argued that in consequence of the amendment the more important matters of the sale proclamation have been entrusted to a superior revenue officer while comparatively minor matters are left to be settled by the sale officer and therefore whatever may be the case with regard to the disregard of provisions of Section 116, disregard of the provisions of Section 117 should not any longer be regarded as so mandatory as to entail the result that the sale is unlawful. The test to decide whether the provisions are to be regarded as mandatory or directory is laid down in the Bench decision in Manickavasaka v. Chidambaram Pillai : AIR1940Mad185 , already referred to. Having regard to the principles which are found extracted in that decision from the English judgments and applying them to the facts before us, I cannot but concede there is a good deal of force in the contention that the matters provided for in Section 117 are regarded by the Legislature as comparatively minor matters, and not so important matters as provided for under Section 116. Having regard to the general scheme of a rent sale, I should be disposed to hold that disregard of the provisions of Section 117 in the sense that the superior officer settled these matters instead of the sale officer does not make the sale illegal. This consideration of course will only govern the validity of the rent sale of the year 1936 but not of the earlier sale which took place in 1933.
9. But that apart, another contention has been raised before me, namely, that even a violation of the provisions of Sections 116 and 117 does not make the sales a total nullity but they are merely unlawful in the sense that they are voidable and liable to be set aside and must be set aside within the period provided for by Article 12, Limitation Act. It was conceded before me in answer to a specific question that Article 12 (b) would apply for suits to set aside a sale as held by a recent Bench decision in Venkateswarlu v. Veerasami : (1946)1MLJ291 . That decision upholds that view both with regard to the amended Act, as well as the unamended Act. In this case although the sale were in 1933 and 1936 the suits were filed only in 1944 long after the period of one year and 45 days from the dates of sales which will be the period provided for by Article 12, Limitation Act, Indeed whether it is Articles 12 or 14 or even 120 the period had long ago expired. It is only if a 12 year period can be justified that these suits will be in time. Once the jurisdiction of the Collector is validly created by the service of a proper notice under Section 112 I should think that any subsequent illegalities are only matters which do not make the sale null and void though they may be unlawful in the sense that they may be required to be set aside. It may be noted that the two decisions dealing with the matter related to cases where actually the suits were instituted within the time prescribed by Article 12 and it was not necessary for their Lordships to consider the question whether the sales were really void and not merely voidable. In my view such sales in disregard of the absolute provisions of any of the sections of the Estates Land Act apart from cases where there is no jurisdiction at all to sell, relate only to illegalities which make the sale voidable and in such cases the sale must be got set aside within the time fixed by Article 12. It will not be open to the plaintiff where it is necessary to set aside the sale before he could get the relief for possession simply to ignore the sale and ask for possession, after the expiry of the period to set aside the said sale. On this aspect of the case I should have held that the suits were barred by time and plaintiff could not get the relief for possession. In the result, notwithstanding my opinion on the second point above referred to, as I have held on the first point that there was no jurisdiction to sell at all and the sales are consequently null and void, both the suits are decreed. But the plaintiff must pay Rs. 100 to defendant 1 in both the cases being the value of the improvements found to have been made by them. This order will be given effect to even in O. S. No. 205 of 1944. It has already been provided for in the decree of the trial Court in O. S. NO. 206 of 1944.
10. In the result Second Appeal No. 915 of 1946 is allowed with the modifications suggested and S. A. NO. 981 of 1946 is dismissed. In the circumstances of the case having regard to the conduct of the plaintiff I think this is a proper case where each party should be directed to bear his own costs throughout. The costs of defendant 2's advocate is fixed at Rs. 100 in each case. No leave.