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B. Tiruvalloor Pillai Vs. Seshadri Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1765 of 1971
Judge
Reported inAIR1974Mad282
ActsRevenue Recovery Act; Code of Civil Procedure (CPC), 1908 - Sections 80; Court of Wards Act - Sections 49; Code of Civil Procedure (CPC), 1882 - Sections 424
AppellantB. Tiruvalloor Pillai
RespondentSeshadri Iyer and ors.
Cases ReferredZamindar of Sivaganga v. Muthayya Chettiar
Excerpt:
.....security bond ex. but in view of its finding that the plaintiff has no subsisting interest in the suit properties on the date of suit and that the suit is bad for the non-issue of a notice under sec. parasaran, learned counsel for the appellant, contends that the finding of the lower appellate court that the plaintiff had no subsisting interest or right to question the revenue sale in relation to the suit properties and that the suit is bad for want of notice under section 80, c. cannot be availed of by him and therefore, the suit filed by him without the issue of a fresh notice under section 80, was bad. however held that the legal representatives and assignees must prima facie be taken to be included in any reference to a person in a statute, unless the reason of the rule of law..........of the properties by him or in the alternative for recovery of possession of the same. the suit properties are comprised in s. no. 200/6 of an extent of 2-66 acres and s. no. 201 measuring 0-15 cents. the first defendant is the purchaser of the suit properties in the revenue sale and the second defendant is the state of tamil nadu represented by the collector who ordered the revenue sale. defendants 3 to 5 are the brothers of the plaintiff and the 6th defendant is his wife. 2. the suit properties belonged absolutely to one kanakavalli ammal, the plaintiff's mother. she had borrowed a loan of rs. 2,000 from the 2nd defendant for the purchase of an oil engine, the loan being repayable in 10 monthly instalments on the security of the first item of the suit properties. ex. b-9 dated.....
Judgment:

1. The plaintiff who failed in both the courts below is the appellant. He filed a suit for a permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the properties by him or in the alternative for recovery of possession of the same. The suit properties are comprised in S. No. 200/6 of an extent of 2-66 acres and S. No. 201 measuring 0-15 cents. The first defendant is the purchaser of the suit properties in the revenue sale and the second defendant is the State of Tamil Nadu represented by the Collector who ordered the revenue sale. Defendants 3 to 5 are the brothers of the plaintiff and the 6th defendant is his wife.

2. The suit properties belonged absolutely to one Kanakavalli Ammal, the plaintiff's mother. She had borrowed a loan of Rs. 2,000 from the 2nd defendant for the purchase of an oil engine, the loan being repayable in 10 monthly instalments on the security of the first item of the suit properties. Ex. B-9 dated 8-3-1954 is the security bond executed by Kanakavalliammal and others in favour of the second defendant in respect of that item. But the said Kanakavalliammal had earlier executed a settlement deed Ex. A-1 dated 19-11-1951 in respect of both the items whereunder she has created a life interest for herself and another life interest in favour of the plaintiff, and thereafter granted an absolute interest in favour of the plaintiff's minor sons.

As the said Kanakavalliammal did not pay the instalments due as per the provisions of the security bond Ex. B-9, both the items of properties were sold by the second defendant under the provisions of the Revenue Recovery Act on 21-11-1960 and the first defendant became the successful bidder. The sale was confirmed on 17-5-1962 and the first defendant is said to have taken delivery of the suit properties on 14-7-1962. On 16-12-1960 Kanakavalliammal had issued a notice under Section 80, C. P. Code to the second defendant to the effect that she intends to file a suit for setting aside the revenue sale held on 21-11-1960. But Kanakavalliammal died on 17-9-1961. The plaintiff has thereafter filed the present suit in 1964 for the reliefs detailed above without issuing a fresh notice under Section 80. C. P. Code, but relying on the notice issued by his mother under Ex. A-11 in 1960. In the suit the plaintiff has questioned the validity of the revenue sale on various grounds.

3. The first defendant resisted the suit contending that the revenue sale was not invalid as alleged by the plaintiff, that the properties have been sold for a reasonable price that there was no irregularity in the conduct of the sale, that the sale was confirmed only after the plaintiff and defendants 3 to 5 had exhausted their remedies provided under the Revenue Recovery Act upto the Board of Revenue for setting aside the sale and that in any event, the plaintiff had no subsisting interest in the suit properties. It was also contended that the suit is barred under Section 37-A, 38 and 59 of Madras Act 2 of 1864 and that the suit is also bad for want of notice under Section 80. The stand taken by the second defendant was practically the same. Defendant 3 to 6 supported the case of the plaintiff.

4. The trial court, after considering the evidence adduced by the parties, both oral and documentary, held that the revenue sale as regards item 1 was valid but that the said sale in relation to item 2 was bad in view of the fact that item 2 had not been included in the security bond Ex. B-9. It therefore declared that the sale of item 2 was invalid and directed delivery of possession of the said item to the plaintiff. The trial court had held that though the plaintiff had not in fact issued a notice under Section 80. C.P.C. the notice issued by his mother under Ex. A-11 could be availed of by him, and, that therefore, the suit is not liable to be dismissed for want of proper notice under Section 80, C.P.C.

5. The plaintiff appealed as regards the dismissal of the suit so far as it related to the first item and the first defendant filed his memorandum of cross-objections questioning the decree of the trial court setting aside the revenue sale in relation to item 2. The second defendant filed a separate appeal challenging the decision of the trial court as regards item 2. The lower appellate court, however, took the view that the notice issued by the plaintiff's mother under Ex. A-11 cannot be taken advantage of by him, and that he not having issued a fresh notice under Section 80. C.P.C., his suit is not maintainable. It also held that Kanakavalliammal, the plaintiff's mother, having died on 17-9-1961, and the life interest which has been created in his favour under the settlement deed Ex. A-1 having been parted with by him in favour of his wife under an earlier settlement deed Ex. B-31, dated 27-7-1961, he had no subsisting interest in the suit properties so as to clothe him with a right to challenge the revenue with a right to challenge the revenue sale and that, therefore, he had no cause of action to maintain the present suit.

The lower appellate Court also went into the question of the validity of the revenue sale and held that the same is null and void in view of the various irregularities and vitiating circumstances. But in view of its finding that the plaintiff has no subsisting interest in the suit properties on the date of suit and that the suit is bad for the non-issue of a notice under Sec. 80, C.P.C. by the plaintiff, it dismissed the suit.

6. In this second appeal, Mr. Parasaran, learned counsel for the appellant, contends that the finding of the lower appellate Court that the plaintiff had no subsisting interest or right to question the revenue sale in relation to the suit properties and that the suit is bad for want of notice under Section 80, C.P.C. cannot legally be sustained. The learned counsel for the first defendant besides supporting the said finding of the lower appellate Court, questioned its findings that the revenue sale is null and void, in relation to both the items of properties. As the question of the validity of the sale will arise only if the suit is maintainable, I proceed to deal with the question of the maintainability of the suit.

7. As already stated, defendants 1 and 2 have taken up the stand that the plaintiff has no subsisting interest in the property so as to entitle him to maintain the suit and that in any event the notice issued by his mother Ex. A-11 under Section 80, C.P.C. cannot be availed of by him and therefore, the suit filed by him without the issue of a fresh notice under Section 80, was bad. The plaintiff's stand is that though he has parted with his interest in the properties under Ex. B-31, dated 27-7-1961, in favour of his wife, he is entitled to question the validity of the revenue sale as a legal representative of his mother and that in any event the plaintiff's wife having been impleaded as the 6th defendant in the suit, the suit cannot be dismissed on the ground that the plaintiff has no subsisting interest. It is also his case that the notice issued by his mother under Ex. A-11 would enure for his benefit and that he is entitled to file the suit on the basis of the said notice without himself issuing a fresh notice under Section 80.

8. In Bachu Singh v. Secy. of State, ILR (1903) All 187 it was held that to permit the successor to rely on a notice given by the predecessor will amount to adding words to Section 49 of the Court of Wards Act and that a notice given by a person under that section is not available to a successor-in-interest. Mahadev v. Secy, of State AIR 1930 Bom 367` laid stress on the omission from Section 80, C. P. Code of 1908 of the word 'intending' form the expression 'intending plaintiff' found in Section 424 of the old Code, and held that the benefit of the notice issued under Section 80, C. P. Code cannot be taken advantage of by another. In Venkatarangiah v. Secy. of State, (1931) 59 MLJ 923 = AIR 1931 Mad 175. Sundaram Chetti J. had expressed the view that there should be identity of the person who issued the notice with the person who issued the notice with the person that brings the suit, that a suit brought by a legal representative of a deceased person and a suit brought by a transferee would offend against Section 80, C.P.C. if the notice required by that section was given by the deceased man or the transferor. The above decision of Sundaram Chetty J. has been confirmed by a Division Bench in Venkata Rengiah v. Secy, of State : AIR1935Mad389 and has also been followed by the Bombay High Court in Secy, of State v. Hargondas : AIR1935Bom229 .

9. In Zamindar of Sivaganga v. Muthayya Chettiyar : AIR1936Mad583 , Varadachariar J. however held that the legal representatives and assignees must prima facie be taken to be included in any reference to a person in a statute, unless the reason of the rule of law cannot clearly apply to anybody but the original owner of the property and that, therefore, the legal representatives of the predecessor who issued the notice under Section 80 are entitled to maintain the suit on the basis of the said notice. Referring to the view of Sundaram Chettiar J., in (1931) 59 MLJ 923 = AIR 1931 Mad 175, that there should be identity of the person who issued the notice with the person who brings the suit, the learned Judge observed-

'In a sense, this will be correct, that is, if legal identity is all that is required and the transferee or heir is in law the continuation of the person of the transferor or ancestor. But, I am not, with all respect, prepared to accept the correctness of the statement of the learned Judge, if physical identity of the person is to be insisted on. To take a converse illustration, it is well established that notwithstanding physical identity, a person claiming in his own right is legally different from the same person claiming as a trustee. It seems to me much more consistent with the purpose of provisions like Section 80, C. P. Code, or Section 49 of the Court of Ward Act to hold that notwithstanding the physical identity of the person, a notice given in one character will not avail when the claim is made in the other character than to hold that the physical identity of the individual is the deciding factor.'

In that case the plaintiff relied upon the notice given by a former proprietor under Section 49 of the Court of Wards Act whose interest was purchased by the plaintiff later on the sustain the suit filed by him. The question was whether there was sufficient notice satisfying that provision. It was held that the provisions of Section 49 should be construed in the light of well established general principles of law and that the notice given by a person, when it otherwise satisfied the requirements of law, should be taken to be available for the benefit of the persons claiming under him. The learned counsel for the appellant very strongly relies on the said decision of Varadachariar J. and contends that the view expressed in the decision is the correct legal position and that if the notice already issued by the mother of the plaintiff under Ex. A-11, satisfies the requirements of Section 80, C.P.C. then it will enure to the benefit of the plaintiff who is one of her legal representatives claiming under her.

10. The learned counsel also refers to the decisions of the Supreme Court in State of Andhra Pradesh v. Suryanarayana : [1964]4SCR945 and B. R. Sinha v. State of M. P. : [1969]3SCR955 , in support of his submission that the object of notice under Section 80 of the Code is only to give the Government or the public servant concerned an opportunity to consider the legal position and to make amends or settle the claim out of court, that though the section is imperative and must be so strictly construed that the failure of complying with the requirements in the section will entail the dismissal of the suit, the notice must be reasonably construed, and that the absence of identity of the persons filing the suit with the persons who issued the notice cannot be taken to be fatal to the maintainability of the suit. In the former case, the suit was filed in a representative capacity after getting the requisite permission of the court and the plaintiff complied with the requirements of section 80.

It was contended that the notice under Section 80 having been issued by the plaintiff and another and the suit having been filed only by the plaintiff, the suit was defective. While meeting that contention, the Supreme Court expressed the view that the mere fact that another person who had joined the plaintiff is serving the notice under Sec. 80 did not join in seeking the permission of the court would not render the plaint and the proceedings in the suit defective. The above decision of the Supreme Court is mainly rested on the fact that the plaintiff has filed the suit in a representative capacity and therefore all the persons who issued the notice need not be arrayed as plaintiffs. Their Lordships of the Supreme Court in that case had, however, expressed the view that if more than one person has instituted the suit claiming reliefs personally to them but not all have served the statutory notice, the suit will have to fail in view of the decisions of the Privy Council in Vellayan Chettiar v. Govt. of the Province of Madras AIR 1947 PC 197 and Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia .

11. In AIR 1947 PC 197, a notice was given by one plaintiff stating the cause of action, his name, the description and the place of his residence and the relief which he claimed but the suit was instituted by him and another. The Privy Council observed-

'The section (Sec. 80) according to its plain meaning, requires that there should be identity of the person who issues the notice with the person who brings the suit. See ILR (1931) Mad 416 = AIR 1931 Mad 175 and on appeal : AIR1935Mad389 . To hold otherwise would be to admit an implication or exception for which there is no justification.'

In Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia , two trustees of a Trust served a notice under Sec. 80 intimating that the trustee intended to institute a suit against the Government on a cause of action for the reliefs set out therein. One of the trustees died before the plaint was lodged in court, and two more trustees were appointed in the place of the deceased trustee. Thereafter the two new trustees and the surviving trustee filed the suit. No notice was served on the Government on behalf of the two new trustees. The Privy Council held that the suit was bad for the reason that-

'the provisions of Sec. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit.'

In : [1969]3SCR955 the question was whether a notice issued by a karta of a joint family could be availed of by a coparcener who had become divided subsequent to the said notice. The Supreme Court expressed the view that though Sec. 80 is imperative and the noncompliance therewith will entail the dismissal of the suit, the notice issued under the section must be construed reasonably and any unimportant error or defect therein cannot be permitted to be treated as an excuse for defeating a just claim and that in considering whether the provisions of the statute are complied with, the court must take into account the object of the Legislature, namely, to give to the government or the public servant concerned an opportunity to reconsider its or his legal position, and that if on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defect or irregularity should be ignored. In that case, the court held that there was substantial identity of the person giving the notice with the persons filing the suit as the notice has been given by the karta as a representative of the joint family and therefore, the notice given by the karta was sufficient to sustain the suit brought by a divided coparcener.

12. Keeping the principles enunciated in the above cases in mind, let us consider the facts of this case. As already stated the notice Ex. A-11 was issued by the plaintiff's mother on 16-12-1960 under Section 80. Subsequently the plaintiff's mother died in 1961. On that date the plaintiff had no interest in the suit property as he had assigned all his rights accruing to him on the death of his mother in the suit property in favour of his wife under Ex. B-31, dated 27-7-1961. Therefore it cannot be said that the plaintiff has filed the suit as a person claiming interest in the suit properties under his mother. If the plaintiff were to be taken as the legal representative of his mother then his brothers D-3 to D-5 also her legal representatives, could have been joined as plaintiffs so that it could be said that there is identity between the person who issued the notice and the person who filed the suit. The facts in this case, therefore, cannot be brought even under the decision of Varadachariar J. in Zamindar of Sivaganga v. Muthayya Chettiar : AIR1936Mad583 , where the learned Judge has given a liberal construction of S. 80 and held that if a notice is given by a person under that section any person claiming under him can file a suit without giving a fresh notice. The plaintiff having purported to part with all his rights in the suit property under Ex. B-31, in favour of his wife before the death of his mother, he had no subsisting right in the property on the date of the death of his mother so as to entitle him to file the suit. I have, to therefore, hold that, even assuming that the notice issued by the plaintiff's mother could be availed of by her successor-in-interest, the plaintiff having no subsisting interest in the property which is the subject matter of the revenue sale, cannot rely on the said notice issued by the mother, nor can he maintain the suit in his own right. In this view the plaintiff's suit should be held to be incompetent.

13. In view of my above finding on the maintainability of the suit, the question relating to the validity of the revenue sale need not be gone into.

14. The result is the second appeal fails and is dismissed. There will be no order as to costs. No leave.

15. Appeal dismissed.


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