Venkataramana Rao, J.
1. The question for decision in this second appeal relates to the validity of a revenue sale. The relevant facts are these. The suit properties belonged to one Ramanarayana Pillai in whose name the patta stood in the revenue registry and the total extent of land sold was about 14 acres. There was default in the payment of arrears of revenue for fasli 1340 amounting to Rs. 11--5--0. On 10th September, 1931 a notice (Ex. III) was issued under Section 25 of the Revenue Recovery Act calling upon the said Ramanarayana Pillai to pay the arrears within ten days. The notice was not personally served on him but was affixed to his house. A copy of the notice was also affixed on the land and published in the District Gazette. In the notice it was stated that the sale would take place on 12th November, 1931. Ramanarayana Pillai died on 27th October, 1931, leaving the plaintiffs his sons who were then minors. The property was sold on 12th November, 1931, and purchased for Rs. 11-12-0 by the first defendant who has since transferred the property to the third defendant. This suit was filed by the plaintiffs for a declaration that the sale is null and void. It was attacked on various grounds but both the lower Courts decided against the plaintiffs and held that the sale was valid.
2. Mr. Thiruvenkatachari, the learned Counsel for the plaintiffs has confined himself only to one ground, namely, that Ramanarayana Pillai having died before the date of sale, the sale must be held to be null and void and in support of his contention he relied on some observations of the learned Judges in Marukkolandai Ammal v. Secretary of State for India : AIR1932Mad664 . In that case the registered pattadar was dead and his legal representative the widow was not registered in his place. His widow was however paying the assessment but she committed default in fasli 1331. The Collector took steps for realising the same. The requisite notices under the Revenue Recovery Act were issued in the name of the dead man and affixed to the property and the property was sold. It was held that the sale was invalid. The learned Judges observed thus:
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....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 sale proceedings...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.
Mr. Muthukrishna Aiyar for the contesting respondent contends that this case was distinguishable on the ground that the daughter in that case was dead even before the proceedings were initiated, whereas in the present case all the requisite notices were served on the defaulter and all that remained was to sell the property and therefore the jurisdiction of the Revenue Court could not be said to have been taken away by the mere fact that the defaulter died, that after service of the requisite notices the jurisdiction to sell the property was complete and that there is no procedure for bringing on record in the proceedings the legal representatives of the deceased defaulter.
3. The question is which of these contentions is tenable. A close analysis of the various provisions of the Act leads me to the conclusion that the Act contemplates the continued existence of the defaulter till the date of sale and if before the date of sale the defaulter dies, the sale would be infructuous and would pass no title to the purchaser. Section 2 of the Act says:
The land, the buildings upon it, and its products, shall be regarded as the security of the public revenue.
The land in that section means the land of the landholder and in the present case the ryotwari interest of the proprietor Ramanarayana Pillai. If there was default in the payment of arrears of revenue, the Act empowers Government to initiate proceedings for realising the said revenue by sale of the defaulter's moveable or immoveable property which would include land in respect whereof there has been default in the payment of revenue, or by execution against the person of the defaulter. Sections 25 to 44 deal with the procedure which the Collector is enjoined to adopt if he decides to sell the land in respect whereof arrears are due or the other immoveable property of the defaulter, and these provisions undoubtedly indicate that what will be sold will be 'the land of the defaulter.' Sections 26 and 44 clearly provide what it is the Collector is empowered to sell. Section 26 says:
He shall proceed to recover the arrear by the attachment and sale of the defaulter's land.
Section 44 says:
It shall be lawful for the Collector, or other officer empowered by the Collector in that behalf to sell the whole or any portion of the land of a defaulter in discharge of arrear of revenue.
In Subbaraya v. The Sub-Collector of Chingleput I.L.R.(1883) Mad. 303 Innes J., explained thus the rights of the Government in regard to the realisation of revenue when default was committed, (page 310):
On non-payment of the Government dues, the right to the land would be liable to forfeiture, and the Collector might proceed according to law to sell the lands. Until such procedure was taken, it is difficult to see how the mirasdars could have forfeited their right to the land....For the right of the Government is only a right to a charge on the land, and a right to forfeit, by due course of law, the title of the person holding the land who does not pay the charge.
Therefore until the property is sold, the title of the defaulter to the land is not lost, and the Government could have the property sold only by due course of law, that is, by following the appropriate procedure provided by the Act. What would be sold and what would pass at the revenue sale is only the proprietory interest of the registered pattadar. That is clear from the declaration which has to be made by the Collector after the issue of a sale certificate. Under Section 39 of the Act
The Collector has to advertise the name of the purchaser and the date of purchase together with a declaration of the lawful succession of such purchaser to all the rights and property of the former land-holder in the said lands.
Construing this section Turner, C.J., in Zamorin of Calicut v. Sitarama I.L.R.(1884) Mad. 405 observed:
According to Section 3 it is the proprietor that is liable for the payment of the revenue. According to Section 39 it is his right and property that passes by the revenue sale.
(Vide also the observations of Wallis, C.J., in Subbaroya Goundan v. Ranganadha Mudaliar (1915) 30 M.L.J. 387 : I.L.R. Mad. 93 . The form of declaration framed by the Board of Revenue and which is actually published establishes this beyond doubt.
4. The form in the Board of Revenue Standing Orders, Vol. II, page 398 (Form No. 10) runs thus:
It is hereby publicly notified for general information that AB, of village in Taluk of the District has purchased on 191 at a public auction the undermentioned lands sold for arrears of revenue due by , land holder in the undermentioned village and has paid the full purchase money, namely, Rupees , and that the lands have been registered in his name. It is therefore, declared that the said AB has succeeded to all the rights and property of the present registered holder in the said lands.
This view is further strengthened by Section 36 (4) of the Act which provides that where a re-sale takes place in consequence of the non-payment by the purchaser of the purchase money and where the lands may on the second sale sell for a higher price than at the first sale, the difference or increase shall be the property of him on whose account the said first sale was made. This clearly indicates that what was sold is only the proprietary interest of the defaulter and that until the property is sold it continues in the defaulter. That the law contemplates the continued existence of the defaulter down to the date of sale is also clear from Sections 37 and 47 of the Act, which provide that it is open to the defaulter to pay up the arrears before the date of sale or tender security to avert the sale. As observed in The Secretary of State for India in Council v. Pisipati Sunkarayya : (1910)20MLJ794 , in the eye of the law the land must be his property at the time of the sale. The question therefore is, can it be considered to be Ramanarayana Pillai's property on the date of sale in this case? He having died, his property vested in his sons and therefore on the date of sale the property belonged to them. No doubt they took the property subject to the obligation of paying the arrears of revenue; nevertheless it was their property. The moment a man dies, the ownership which he had in the property is lost. That is the fundamental principle of jurisprudence (Fide Holland's Jurisprudence, 13th edition, page 222). As Salmond observes in his book on Jurisprudence:
Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives and are now as destitute of rights as they are free from liabilities....They do not even remain the owners of their property until their successors enter upon the inheritance(page 332, 8th edition).
So when the land is sold as the property of the defaulter, what was sold was the right of the dead man and the sale would pass no title to the purchaser. I would respectfully adopt the following observations in Groves v. Administrator-General of Madras : (1898)8MLJ288 , though they were made in connection with a sale in execution of a decree of Court:
The only thing sold was the right of a dead man which passes no property, as the dead man had no right at the time of the sale, the rights of the dead man being at the time of the sale in his legal representatives and their rights were not sold or in any way affected because they were not on the record.
According to the declaration under Section 39 of the Act, the purchaser succeeds to the rights and property of the 'present registered holder'. When the registered holder is dead, there could be no present registered holder to whose rights the purchaser can succeed.
5. It is contended by Mr. Muthukrishna Aiyar that there is no procedure for bringing on record the legal representatives of a defaulter under the Revenue Recovery Act and that a revenue sale cannot be rendered invalid on that account. I quite agree; but there can be no doubt that the proceedings taken by the Collector under the Act are legal proceedings to which the defaulter must be deemed to be a party. Though strictly speaking there is no provision for substituting his legal representative, still when a party to a proceeding is dead, there can be no valid legal proceeding against him. A duty is enjoined on revenue officers to substitute the legal representatives in the registry. What the Collector should have done was to substitute the names of the minors in the registry, fix a fresh date of sale, issue a fresh notification under Section 36 of the Act and serve a copy on the mother, the legal guardian of the minors and proceed with the sale or commence the whole procedure de novo by issuing a fresh demand under Section 25 of the Act on the mother as the guardian of the minors and in default of compliance with it, take further steps as provided in the Act. As neither procedure was adopted by the Collector in this case, I must hold that the sale was invalid and therefore passed no title to the purchaser the first defendant.
6. In the result the decrees of both the lower Courts are set aside and there will be a decree in favour of the plaintiffs. The plaintiffs are directed to pay Rs. 100 to the third defendant as and for the improvements effected by him. The plaintiffs are entitled to get delivery of possession of the property only after payment to the third defendant of the said sum of Rs. 100 has been made. The plaintiffs are given leave to deposit the said sum into Court. Having regard to the circumstances of this case I direct each party to bear his own costs of the litigation throughout. There will be no order in regard to mesne profits.
7. Leave to appeal is refused.