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Kovvuri Basivi Reddi and Five ors. Vs. Nidumoori Ramayya Et Al - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1918)ILR41Mad733
AppellantKovvuri Basivi Reddi and Five ors.
RespondentNidumoori Ramayya Et Al
Cases ReferredSubramania Chetty v. Mahalingasami Sivan I.L.R.
Excerpt:
.....and value of moveables, within one year of dismissal of claim petition but more than a year after attachment, governed by article 11 of the limitation act--civil procedure code (act v of 1908), order xxi, rule 63, nature of suits brought under. - - 3. it seems therefore clear that the sale of the land was without jurisdiction, section 44 of the act which permits a sale for non-payment of revenue must be read subject to section 63 of the act which in terms preserves to minors the rights they enjoyed under regulation x of 1831. it was however held in raja goundan v. , 70 .in this latter case, the judicial committee had to deal with a case to which the provisions of the bengal revenue recovery act were applicable and they pointed out that irregular as well as illegal sales..........application to the facts of this case. the property was admittedly sold when the plaintiff was a minor. regulation x of 1831, section 2, enacts that no property of a minor shall be sold for arrears of revenue. section 63 of act ii of 1864 provides:nothing in the act shall be held to bar the operation of the provisions of regulation v of 1840 and of regulation x of 1831 in respect to the sale of lands of minors and other disqualified landholders.3. it seems therefore clear that the sale of the land was without jurisdiction, section 44 of the act which permits a sale for non-payment of revenue must be read subject to section 63 of the act which in terms preserves to minors the rights they enjoyed under regulation x of 1831. it was however held in raja goundan v. raja goundan i.l.r.,.....
Judgment:

Seshagiri Ayyar, J.

1. The facts of the case are not in dispute. The appellant, plaintiff, was taken in adoption by a ryotwari landholder. The patta for the lands in dispute stood in his name. After his death, the patta was transferred to the name of the adoptive mother. She did not pay the Government revenue, and the lands were brought to sale and purchased by the second defendant. The suit is to recover possession. The Subordinate Judge has found that there was no fraud on the part of the first defendant in allowing the property to be sold for arrears of revenue. We accept that finding. He has further found that the suit is barred by limitation as it was brought more than six months after the plaintiff attained his majority; vide Section 59 of the Madras Revenue Recovery Act.

2. The main argument before us was that Section 59 of the Act has no application to the facts of this case. The property was admittedly sold when the plaintiff was a minor. Regulation X of 1831, Section 2, enacts that no property of a minor shall be sold for arrears of revenue. Section 63 of Act II of 1864 provides:

Nothing in the Act shall be held to bar the operation of the provisions of Regulation V of 1840 and of Regulation X of 1831 in respect to the sale of lands of minors and other disqualified landholders.

3. It seems therefore clear that the sale of the land was without jurisdiction, Section 44 of the Act which permits a sale for non-payment of revenue must be read subject to Section 63 of the Act which in terms preserves to minors the rights they enjoyed under Regulation X of 1831. It was however held in Raja Goundan v. Raja Goundan I.L.R., (1894) Mad., 134 that a sale of a minor's property under Act II of 1864 is, covered by Section 59 of the Act. Reliance was placed in that judgment upon Gobind Lal Roy v. Ramjanam Misser I.L.R., (1894) Calc., 70 . In this latter case, the Judicial Committee had to deal with a case to which the provisions of the Bengal Revenue Recovery Act were applicable and they pointed out that irregular as well as illegal sales should be appealed against to the Commissioner. We do not think that pronouncement is any authority for the proposition that a sale which is prohibited by a legislative enactment should be regarded as a proceeding intra vires the powers of the Collector so as to invite the provision of Section 59 of the Act.

4. The next point is whether the present sale is not against the provision of Regulation X of 1831. It was contended on the authority of Krishna v. Mekam Peruma I.L.R. (1887) Mad., 44 that the estate of the minor referred to in the Regulation must be of such magnitude and importance as can be managed by the Court of Wards. Regulation V of 1804 which was in force when Regulation X of 1831 was passed makes no reference to the extent of the property which alone can be taken under the control of the Court of Wards.

5. Ordinarily, no doubt, the Court will not interfere with private management where the estate is not considerable; but that is no ground for saying that the Regulation provides only for a particular class of estates. In our opinion, Krishna v. Mekam Peruma I.L.R., (1887) Mad., 44 is not reconcilable with the language of either Regulation V of 1804 or of Regulation X of 1831. Moreover, there is no evidence in this case that the authorities considered that the estate should not be taken up by the Court of Wards. It does not follow that because the Court did not take up the management, it would not have done so, if appealed to.

6. Mr. Muthaya Mudaliyar next argued that as the patta stood in the name of the adoptive mother and as she was the defaulter, the property was rightly sold under the Act. Section 2 of Regulation X of 1831 speaks of the estate having come to the minor by inheritance, and prohibits the sale of such an estate. The provision for sale where the pattadar makes default cannot be spelled cut of this Regulation. It is true that Subramania Chetty v. Mahalingasami Sivan I.L.R., (1910) Mad., 41 holds that the revenue authorities are not bound to give notice to the real owner, so long as the patta stands in the name of some other person. That was a case of vendor and purchaser. There has been no similar decision in the case of father or mother and son. Subramania Chetty v. Mahalingasami Sivan I.L.R., (1910) Mad., 41 refers specially to Regulation XXVI of 1802 which relates to the case of a purchaser not taking steps to have the registry transferred to his name. Moreover, it is doubtful whether, in the face of Section 2 of Regulation X of 1831, the provision of Act II of 1864 which enables a sale where the person in whose name the patta stands makes default in the payment of revenue is applicable to the sale of properties belonging to minors.

7. As there are earlier decisions of this Court which we think require reconsideration, we have resolved to refer the following questions for the opinion of the Full Bench:

(1) Whether a sale of a minor's property under Act II of 1864 is a proceeding to which Section 59 of the Act is applicable so as to compel the aggrieved parties to sue within six months of the sale?

(2) Whether Regulation X of 1831 only applies to such estates of minors as are ordinarily taken charge of by the Court of Wards?

(3) Whether the fact that the patta stood in the name of the mother of the minor, precludes the latter from invoking the aid of Regulation X of 1831?


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