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R.P. David Vs. M. Thiagarajan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1634 and 1635 of 1962
Judge
Reported inAIR1966Mad89
ActsIndian Lunacy Act, 1922 - Sections 14, 47, 75 and 75(2); Guardians and Wards Act - Sections 27 and 29; Constitution of India - Article 227
AppellantR.P. David
RespondentM. Thiagarajan and ors.
Cases ReferredAnpurnabai v. Durgapa Mahalapa Naik
Excerpt:
property - lunatic's interest - sections 14, 47 and 75 of indian lunacy act, 1922, sections 27 and 29 of guardians and wards act and article 227 of constitution of india - revision petition against order of district court granting permission to managers to sell immovable property belonging partly to lunatic - section 75 provides that manager can effect sale of lunatic's estate only after obtaining prior sanction of court - court while deciding must take note of interest of lunatic - non lunatic sister consented to sale of her interests along with lunatic's interest - managers and court acted on such consent - parties cannot now resile form position and cannot claim as if there was independent sale of separate shares - subject matter of sale was whole property - sale good or bad in.....order1. these revision petitions arise out of proceedings under the indian lunacy act 1922, before the district court, salem. the petitioner is the same in both the petitions. the first respondent in c.r.p. 1634 of 1962 is one thiagarajan and it will be convenient to refer to him as the respondent in this judgment. respondents 2 and 3 in c.r.p. 1634 of 1962 are the managers appointed under the lunacy proceedings in respect of the estate of the lunatic. they are the only respondents in c.r.p. 1635 of 1962. they can be conveniently referred to in this judgment as the managers. the first respondent (thiagarajan) in c.r.p. 1634 of 1962 is not a party to c.r.p. 1635 of 1962. c.r.p. 1634 of 1962 is directed against the order of the district court in i.a. 401 of 1962 granting permission to the.....
Judgment:
ORDER

1. These revision petitions arise out of proceedings under the Indian Lunacy Act 1922, before the District Court, Salem. The petitioner is the same in both the petitions. The first respondent in C.R.P. 1634 of 1962 is one Thiagarajan and it will be convenient to refer to him as the respondent in this judgment. Respondents 2 and 3 in C.R.P. 1634 of 1962 are the managers appointed under the lunacy proceedings in respect of the estate of the lunatic. They are the only respondents in C.R.P. 1635 of 1962. They can be conveniently referred to in this judgment as the managers. The first respondent (Thiagarajan) in C.R.P. 1634 of 1962 is not a party to C.R.P. 1635 of 1962. C.R.P. 1634 of 1962 is directed against the order of the District Court in I.A. 401 of 1962 granting permission to the managers to sell an item of immoveable property, belonging partly to the lunatic, to Thiagarajan. C.R.P. 1635 of 1962 is against the order of the District Court in I.A. 402 of 1962 rejecting the prayer of the managers to accord sanction to sell the same property to the petitioner, one R. P. David.

(2) I shall briefly refer to the facts and events leading upto these petitions in a chronological order as far as possible. A certain coffee estate called 'the Riverdale estate' which consists of a large extent of coffee plantations and a bungalow belonged to two sisters, Miss Mary Holwell Short, and Miss Alice Edith Short, who obtained it as bequest under the last will and testament of their father. In proceedings under the Indian Lunacy Act, O.P. 34 of 1939 on the file of the District Court, Salem, the former was adjudged as lunatic. By order of court dated 20-4-1960 one Mr. Muirhead, partner of Messrs. King and Partridge, Solicitors and one Rev. E. L. Poyser were appointed joint managers to manage the estate of the adjudged lunatic. The Riverdale estate which as stated already belonged to the two sisters in equal moieties was managed by the widow and son of the deceased brother of the owners, Mrs. R. Margaret Short and Mr. John Short. John Short left for England where he settled down permanently. Mrs. Margaret Short also desired and intended to leave India for good. The managers were not in a position to manage the estate efficiently. They therefore thought it best to sell the estate and to invest the sale proceeds in so far as the half share of the lunatic was concerned, to fetch a good return for the upkeep and maintenance of the lunatic. The other half sharer of the estate also desired to sell away her interests in the property so that the maximum and the best available price could be secured. The managers were also of the opinion that having regard to the keen demand for purchase of coffee estates in general the time was propitious to sell the Riverdale estate for a good price.

(3) The managers filed I.A. 66 of 1961 in the court below seeking permission to sell the entire interest of the lunatic in the Riverdale estate and to invest the share of the proceeds of the sale belonging to the lunatic in such Government securities or other investments as the court may be pleased to direct. In the affidavit in support of this application for sanction the managers averred as follows:

'The first respondent who is the owner of the other half is also of the view that she cannot manage her share and desires to sell her interests as in her view also a sale of the entire estate alone would fetch the maximum price, and is prepared to co-operate with the joint managers in selling the entire estate if that course is decided upon by them. All the relatives desire that the entire estate be sold with the permission of the court and with the consent of the first respondent herein.'

The court granted the necessary permission by its order dated 24-1-1962. The order was in these terms:

'I am satisfied that it would be beneficial to the lunatic to sell her share also along with that of the first respondent (Alice Edith Short). Permission is granted. The manager would submit to court the offers in respect of the sale and enter into an agreement to sell only under the orders of the court.'

The managers advertised the sale of the estate in the daily newspapers of South India, viz., the Hindu, the Mail and the Indian Express. Enquiries were received by the Managers from various individuals and the managers furnished each one of such enquirers with a statement of particulars regarding the extent of the estate etc., the conditions of the sale and the form in which the offers were to be submitted. Offers were to be made to Messrs. King and Partridge at Bangalore on or before 31-7-1962. The two important conditions prescribed by the managers regarding the offers to be submitted were as follows:

'All offers must be accompanied by a cheque or draft drawn at Madras or Bangalore in favour of Messrs. King and Partridge being 10 per cent of the amount offered for the estate. The offer should be submitted in the form attached on or before 31-7-1962. The 10 per cent deposit will be refunded, without interest, if the offer is not approved by the court. Any offer received without the said payment will not be considered.

If the offer is approved by the court and accepted by the vendors, the purchaser shall immediately execute an agreement for sale in the form to be approved by the court. The purchaser should be prepared to complete the purchase and pay the balance of the purchase price and all other amounts as mentioned above not later than two months from the date of the court's approval.'

According to the terms and conditions extracted above, a valid offer for purchase of the estate would be one which reached Messrs. King and Partridge on or before 31-7-1962 accompanied by a cheque or draft drawn at Madras or Bangalore for an amount of ten per cent of the amount offered. Any offer which failed to comply with these two requisites was liable to be rejected by the managers themselves.

(4) It is not disputed that five persons, including the petitioner, made offers strictly fulfilling the terms and conditions prescribed. Amongst these five offers the highest was that of the petitioner who made an offer of Rs. 5 lakhs. Quite legitimately and very properly the managers submitted a report to the District Court giving particulars of the offers received, stating that the offer of the petitioner was reasonable, and that it may be accepted. They filed I.A. 402 of 1962 on 13-8-1962 praying for the acceptance of the offer of Rs. 5 lakhs made by the petitioner and for the approval of the draft agreement to sell, annexed to the petition. In the affidavit in support of the application filed by Rev. E. L. Poyser the following averment is found--

'That petitioners have consulted Miss A. M. H. Short the owner of one half share of the said estate, and also Mr. J. L. Short, the manager of the said estate, and are informed if the price of Rs. 5,00,000 offered by Mr. D. P. David is a reasonable one and may be accepted.'

But something happened even before the managers filed the said application.

(5) The respondent (Thiagarajan) filed an application I.A. 401 of 1962, on 7-8-1962, stating that he intended to buy the property for Rs. 5,05,000. He made this offer for the purchase of the estate in and by that petition. He averred in an affidavit sworn to by him that he was doing business in Colombo, that he returned to India only by the end of July 1962, that he learned from a lawyer at Salem that the Riverdale estate at Yercaud was being put up for auction before the court, and that therefore he was not in a position to submit the offer earlier. He prayed that his offer of Rs. 5,05,000 may be considered along with the other offers already made for the purchase of the estate. It is unnecessary for me to record a finding on the truth or otherwise of these averments of the respondent as in my opinion they have no bearing or relevancy on the question now in issue before me regarding the propriety of the sanction accorded by the court below. Notice of this application was served upon the advocate for the managers on the very day it was filed (7-8-1962). In fact the application itself seems to have been filed into court after serving notice on the manager's advocate. The court returned this application on 8-8-1962 stating that the offer had to be made to the managers who would later on submit all the offers received by them to the court. The application was represented on 13-8-1962 with the endorsement that the court has the power to accept the offer which is beneficial to the estate of the lunatic, and that there was no necessity to submit the offer to the managers. It may be noted that it was on 13-8-1962, one of the managers sworn to an affidavit that the offer of the petitioner may be approved. The learned District Judge passed an order on 20-8-1962 in I.A. 401 of 1962 observing that the offers received from other persons should be checked and that this petition should be posted along with those offers on 25-8-1962. The District Judge did not attend court on 25-8-1962 and the application was therefore reposted to 29-8-1962. The officer of the District Court put up a note stating that the managers had submitted their report giving particulars of offers received by them, that Thiagarajan the applicant in I.A. 401 of 1962 did not make any offer to the managers, that the highest offer as disclosed by the managers report was that of David for Rs. 5 lakhs. Significantly however the following note is found as part of the endorsement:

'The petitioner (Thiagarajan) has now made his offer to the manager and prays the court to consider his offer.'

On 29-8-1962 the court directed the petition to be called on 30-8-1962 and the advocate for the managers, one Mr. Tatachariar, made an endorsement on 30-8-1962 stating that the offer may be accepted. On that very date the learned District Judge passed the following order:

'Thatachariar for the manager of the lunatic accepts this offer. The petitioner says that all the items covered by the tender belong to the lunatic herself and that there is no difficulty about S. Nos. 11/1 and 31/1-A 2 cents. In that view, the offer is accepted. Petitioner would deposit into court Rs. 2,52,500, to draft agreement of sale, produced in court and also accepted. Call for deposit 1-9-1962.'

I must make it clear that in the arguments before me no question was raised and nothing was debated about S. Nos. 11/1 and 31/1-A 2 cents. Both sides proceeded before me on the footing that there was no question in the court below regarding want of title to any portion of the estate. The respondent (Thiagarajan) deposited the amount on 31-8-1962 and thereupon the court passed the following order on

1-9-1962:

'The entire amount for the half share has been deposited by the petitioner. So now it is not necessary to have any agreement of sale. So the manager is directed to execute the sale-deed embodying the conditions in the agreement for sale produced in court in favour of the petitioner, Thiagarajan and/or his nominee.'

It is now stated before me by learned counsel appearing for the managers that the possession of the estate has been handed over to the respondent and what remains is only the execution of the actual conveyance.

(6) In this state of affairs the application I.A. 402 of 1962 received scant attention. The learned District Judge passed an order on that application on 1-9-1962 in the following terms:

'In view of the order in I.A. 401 of 1962 this is dismissed.'

Before dealing with the contentions urged before me by M. T. M. Krishnaswami Iyer, learned counsel for the petitioner, and the learned Advocate General for the respondent, I shall refer to the statutory provision under the Indian Lunacy Act dealing with the manager's powers. The powers of the manager of the estate of a lunatic are as full and complete as those of the proprietor who is not a lunatic but are however subject to this limitation, namely, that he shall not deal with the immoveable property of the estate by way of mortgage, charge, sale, gift or exchange without the permission of the court. A sale by the manager without the sanction of the court would be invalid and would not operate to transfer title to the vendee. This is clearly the correct legal position as embodied in S. 75 of the Indian Lunacy Act which reads:

'1. Every manager of the estate of the lunatic appointed as aforesaid may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a lunatic, and may collect and pay all just claims, debts and liabilities due to or by the estate of the lunatic.

Provided that no manager so appointed shall without the permission of the Court--(a) mortgage, charge, or transfer by sale, gift, exchange, or otherwise any immoveable property of the lunatic, (b) lease any such property for a term exceeding five years. Such permission may be granted subject to any condition or restriction which the court thinks fit to impose.

2. Before granting any such permission, the court may cause notice of the application for such permission to be served on any relative or a friend of the lunatic and may make or cause to be made such inquiries as to the court may seem necessary in the interests of the lunatic.'

This provision occurs in Ch. V of the Act which relates to proceedings in lunacy outside Presidency towns. There is a corresponding provision, S. 47, dealing with the powers of the manager in respect of the management of the lunatic's estate in proceedings arising within the presidency town. It is not necessary to advert to that provision. A similar provision is found in the Guardians and Wards Act, Ss. 27 and 29. S. 27 provides that,

'A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and subject to the provisions of this chapter, he may do all acts which are reasonable and proper, for the realisation, protection or benefit of the property.'

S. 29 enacts, and this is practically the same as the proviso under S. 75 of the Lunacy Act, that,

'Where a person other than Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the court to be guardian of the property of a ward, he shall not without the previous permission of the court, (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immoveable property of his ward..........'

What is reasonably plain from S. 75 of the Indian Lunacy Act is that the manager can effect a sale of the lunatic's estate only after obtaining the prior sanction of the court.

(7) Mr. T. M. Krishnaswami Iyer, learned counsel for the petitioner, raised before me the following contention: 1. The application by the respondent to the court below I.A. 401 of 1962 invoking the inherent power of the court and praying for consideration of his offer of Rs. 5,05,000 was not competent in law; (2) the learned District Judge exceeded his jurisdiction in entertaining and approving the offer of the respondent which was not one made to the managers in accordance with the terms and conditions prescribed by them, and which in effect was made in circumvention of such terms and conditions. 3. The permission granted by the court below was bad as it was without notice to the petitioner who had made the highest offer to the managers duly in accordance with the terms and conditions circularised to all intending purchasers. 4. The permission granted was not valid as the learned District Judge failed to exercise his powers judicially in conformity with the provisions of the statute. 5. The rejection of the Manager's application I.A. 402 of 1962 for sanctioning and approving the petitioner's offer of Rs. 5,00,000 was manifestly unjudicial as it was not done on the merits but only because the respondent's offer was acceptable.

(8) Points 1 and 2 referred to above may be conveniently considered and dealt with together. The court cannot sell the lunatic's estate. It has no such power. (See Bishambar Nath v. Mt. Parbati, AIR 1919 Lah 45(1)). In a case arising under the Guardian and Wards Act, the provisions of which governing the property guardian's power of sale are in pari materia with S. 75 of the Indian Lunacy Act, it was held that the act only enables the court to give permission to the guardian to sell the properties on an application preferred by the guardian and does not confer any power whatever on the court to deal with the minor's property on his own motion in any way 12 Cal LJ 322--Jagatbai v. Gajadhar Upadhya). Reference may also be made to the analogous position of a liquidator in charge of winding up of the company. The liquidator has power to accept a compromise with a contributory regarding the payment of call amounts. But the court has no more power to compel the liquidator to accept a compromise than to compel an ordinary suitor to take less than is due to him (1872) 7 Ch A 309, Proba Pearsons case; In re, East of England Banking Co). It follows that the court has no jurisdiction to receive an offer and communicate it to the manager to ascertain his views as regards its acceptability. The question as to how the offer is to be made and to whom it is to be made is not a mere matter of form but one of substance. In the interest of the proper administration of the lunatic's estate, it is highly desirable that only the manager should receive offers after widely advertising the intended sale instead of the court receiving it, perhaps in a hole and corner manner and embarrassing the manager by asking him whether the approves of it. In my opinion, the correct legal position is also to the same effect.

It is true that in the present case, the managers have expressed their willingness to sell to the respondent for a sum of Rs. 5,05,000. It is equally true that they were willing to sell to the petitioner for Rs. 5 lakhs even after receiving notice of the offer made in I.A. 401 of 1962. Be it noted that Mr. Thathachariar received notice of I.A. 401 of 1962 on 7-8-1962, and he himself filed the application I.A. 402 of 1962 on behalf of the managers on 18-8-1962 seeking permission to accept the petitioner's offer. But all the same what has ultimately happened in this case is that the court received the offer and had the approval of the managers; this is just the reverse of what the statute has laid down. The court has no express power under the Lunacy Act nor any inherent power or jurisdiction at all to call upon the manager to say whether he is agreeable to sell the property to an individual for a price offered by him. I have not failed to note that there is an endorsement on the petition in I.A. 401 of 1962 in the following words: 'The petitioner (Thiagarajan) had now made his offer to the manager and prays the court to consider his offer'. I also note that on 30-8-1962 the advocate for the managers endorsed his consent to the offer of the respondent being accepted. It seems to me that this is the more exterior of the transaction. The true position was that the offer was routed through the court to the managers who, of course, expressed their willingness to accept it performing a volte face, after having filed I.A. 402 of 1962, praying for sanction to accept the offer of the petitioner.

(9) The managers had called for offers to be submitted on or before 31-7-1962. They had also made it clear that no offer would be considered if it was not accompanied by ten per cent deposit. They received five offers within the time limits prescribed and the highest offer was that of the petitioner. He paid the ten per cent deposit namely Rs. 50,000 to the managers. The managers also took up the correct attitude and recommended to the court the acceptance of the petitioner's offer. There was no justification in these circumstances for the managers to back the offer of the respondent, who failed to tender his offer in the proper manner to the managers and who rushed to the court straightway offering a little more than the highest offer, presumably after knowing the details of the prior offers from the managers themselves or from one of their staff.

(10) Mr. T. M. Krishnaswami Iyer contends that the court was bound to accept the petitioner's offer and he relies upon two decisions of this court. The first one is reported in Soundararajan v. Md. Ismail : AIR1940Mad42 . In a court sale held in a partition suit on the file of the original side of this court a certain item of property was knocked down for Rs. 1,12,500. The conditions of the sale required that the sale should be confirmed by the court. When the matter came on for confirmation before Gentle J. one of the parties to the suit made a higher offer of Rs. 1,15,000. The highest bidder in the public auction objected to the reception of any further offer by the court. The learned Judge Gentle J. confirmed the sale in favour of the person who was the highest bidder at the public auction. On appeal this order was confirmed by a Division Bench of this court. Sir Lionel Leach C. J. observes thus at page 700 (of Mad LW): (at p. 43 of AIR):

'The fact that the sale is subject to the confirmation of the court does not mean that the court shall refuse to accept the highest bid because at a later stage someone on second thought says that he is willing to pay more. It is only right and proper that the sale should be subject to the confirmation of the court. The condition is a safeguard against irregularity or fraud in connection with the sale and against property being sold at an inadequate price......... The respondent having made an adequate bid and having complied with all the requirements of the court and there being no irregularity he was entitled to have the sale confirmed.'

The next decision is that reported in Subbaraya Mudaliar v. Sundararajan, : AIR1951Mad986 . The principle laid down by the decision in : AIR1940Mad42 was followed though on the facts of that case the learned Judge took the view that it was open to the court to refuse confirmation of the sale as the property was sold for a grossly inadequate value.

(11) The principle laid down by these decisions is that normally the sale held by a court must be confirmed in favour of the highest bidder at the auction and that it would not be permissible to extend the auction to the court room, though it would always be open to the court to refuse confirmation of the sale on the ground that the property was not sold for a proper value. I do not see any reason why the principle of those decisions should not apply even in respect of a sale which is not strictly a court sale but is a sale by a person holding a fiduciary position which cannot be valid without the imprimatur of the court. In the light of this principle the court below acted erroneously and without jurisdiction in receiving the offer of the respondent and in granting the permission to the managers to accept that offer. The application purporting to be one under S. 151 C.P.C. by the respondent was not maintainable and the court had no jurisdiction to consider and grant the relief prayed for by the respondent.

(12) Points 3 and 4 raised by Mr. Krishnaswami Iyer need not be considered separately. I do not propose to go into the question as to whether absence of any notice to the petitioner would vitiate the impugned order. But I have no doubt that the learned District Judge failed to exercise his powers judicially in conformity with the provisions of the statute, S. 75(2) casts a duty upon the court to satisfy himself by judicious enquiries whether the particular act in regard to which permission is sought would be in the interests of the lunatic. It cannot be seriously contended that the court is a mere automaton giving sanction and approval to the highest offer brought before the court for an intended sale of the lunatic's estate. The offer may be highest but it may be far below the market value. The court is bound to investigate with an amount of care and an anxiety, and ascertain the proper price for a sale of the lunatic's property having regard to the actual prevailing market value of similar properties in the locality. To some extent the manager's report may give guidance. But the court should not place implicit faith in the report and sanction of the sale in the manner desired by the managers. How much of the report can be accepted and how much fresh investigation has to be conducted would depend upon the facts of each case. In a case like the present, where there is the offer of Rs. 5 lakhs closely followed by a rival offer of Rs. 5,05,000, it may perhaps be that the property is worth much more than Rs. 5,05,000. I must observe that it was not contended before me by any of the parties that the price of Rs. 5,05,000 was in any way inadequate. But the persons before the court are all persons who are interested in purchasing the property either for Rs. 5 lakhs or for Rs. 5,05,000. The intending purchasers cannot be expected to say that the price offered by them was low or inadequate. The court must be vigilant and circumspect in matters of this description, and that is the rationale of S. 75(2).

(13) I am of opinion that the court below had no jurisdiction to consider the belated offer of the respondent, which was not good either in form or in substance. It was lacking in form as it was not made to the managers but to the court though ultimately the managers for reasons known to themselves, preferred to treat it as good. It was substantially infirm and defective as it was not accompanied by ten per cent deposit as was insisted upon by the managers in the terms and conditions issued. They made it plain that a bare offer without deposit would be ignored. Having chalked out this procedure, they ought not to have departed from it and persuaded themselves to approve or recommend an offer which was sprung in a peculiar way. There must be some orderliness and propriety even in respect of inviting and receiving offers for purchase of the lunatic's estate, and placing them before the court. They function under the statute and they cannot take up the position that their sphere is subject to no control. The proviso to S. 75(1) imposes a curb on their power to effect a sale. The exercise of this power is coupled with a duty to act in the best interests of the estate, conforming to a decent standard of rectitude and fair play. In the present case the managers did not act rightly in agreeing to the offer of the respondent which emerged before the court by passing the terms and conditions prescribed by them. They were not consistent in accepting the offer of the respondent when they had already accepted the offer of the petitioner and filed an application for sanctioning the sale to the latter. It is true that the acceptance by the managers would not conclude the contract as it was subject to approval by the court. If the court's sanction were not necessary, clearly, there was a binding contract between the managers and the petitioner. In such an event the subsequent acceptance of the respondent's offer would amount to breach of the first contract. The present case is not one of that kind. The managers cannot be charged with breach of contract but yet they cannot acquit themselves of impropriety and failure to discharge their duty satisfactorily. It is their indiscretion, nay, devious conduct, which enabled the court to assume jurisdiction at the instance of the respondent who had no right to go behind the court and to make an offer to be considered with the other offers. The courts has no inherent power or jurisdiction to receive offers apart from the jurisdiction exercisable under S. 75 of the Lunacy Act.

(14) The learned Advocate General, appearing for the respondent, submitted that a sale by the manager with the concurrence and approval of the court would be perfect and cannot be challenged by a disappointed rival aspirant for the property sold, on ground of mere irregularities. He fairly conceded that a fraudulent sale for a deliberate undervalue may stand on a different footing. In effect his contention was this. The manager is virtually the owner and he can sell, like any prudent owner, in such manner, to such person and for such price as he likes, subject to the requisite that the court should set its seal to it; there is no duty cast on him to follow a definite procedure in negotiating for sale; and all that the statute requires is that he must obtain permission from the court. The whole of the argument of the learned Advocate General involves a two-fold submissions: 1. The manager's power of the sale is not circumscribed by anything except that he must obtain the prior sanction of the court, and therefore, the procedure that may be adopted by him has no bearing on the validity of the sanction order or on the resulting sale; 2. The permission granted by the competent court cannot be interfered with by this court in its revisional jurisdiction merely at the instance of another intending purchaser, who submits that he would have made a better offer than the successful purchaser. I am unable to accept the contentions of the learned Advocate General. The manager's power of sale is not unfettered and beyond the control of the court. It is under and surveillance of the court. The court can refuse permission to sell, reject the offers placed before it and direct the manager to call for fresh and further offers or to sell by public auction. Before granting permission the court must be satisfied that the manager has succeeded in obtaining the best offer for the purchase. The court is not powerless to refuse sanction for any sale if in its opinion the procedure adopted by the manager was not conducive to secure a good and proper price. Regarding the jurisdiction of this court, I do not entertain any doubt that an arbitrary order of the court below granting or refusing permission without due regard to the statutory provisions can and should be set aside. Such an order is not judicial and I cannot construe S. 115 C.P.C. or Art. 227 of the Constitution of India as affording immunity for unjudicial orders of the subordinate courts from being quashed. That which is not a proper judicial order would either be the result of irregular exercise of or an illegal assumption of jurisdiction.

(15) The revisional jurisdiction of this court is limited to questions of irregular exercise or non-exercise of, or illegal assumption of jurisdiction. Errors of subordinate courts, however gross and palpable they may be, would escape correction in the Court of revision. The cause of justice cannot prevail, as it has no place in the framework of the revisional power. This view was expressed by the Privy Council in a series of cases-Rajah Amir v. Sheo Baksh Singh, 11 Ind App 237 , Balakrishna v. Vasudeva Ayyar, 44 Ind app 261: AIR 1917 PC 71 ; Venkatagiri Ayyangar v. Hindu Religious Endowments Board Madras ; Joychand Lal v. Kamalaksha Chaudury . In Keshardeo v. Radhakissen, : [1953]4SCR136 the Supreme Court has approved of it. In the present case, I am satisfied that the error of the court below is one of jurisdiction. It has directed a sale to the respondent under the guise of sanction under S. 75 of the Act. This is in excess of its jurisdiction or illegal assumption of jurisdiction. It has also failed to exercise jurisdiction under S. 75(2) in dealing with the application of the petitioner, I.A. 402 of 1962.

(16) A point is raised that the half share of the sister of the lunatic could be sold without the permission of the court and that the court has no jurisdiction in respect of that share. Reliance is placed on the decision in Anpurnabai v. Durgapa Mahalapa Naik, ILR 20 Bom, 150. The headnote read thus:

'When a person is appointed manager of lunatic's estate under Act 35 of 1858, he can only make a valid alienation in accordance with the provisions of that Act although he may also be de facto manager of the family property.

A Hindu married woman having a lunatic husband and minor sons was appointed guardian of the lunatic's estate under Act 35 of 1858. She was also de facto manager of the family. She mortgaged the family property without the sanction of the court as required by S. 14 of the Act.

Held, that the mortgages were invalid as regards the lunatic's interest in the property but as regards the interest of the minors which was vested in them at the time of the mortgage, the property being ancestral, the mortgages were binding if made for family purpose.' The principle of law enunciated in this decision is, with respect, correct and it cannot be contended that the court has any jurisdiction under the Lunacy Act in respect of property other than that of the lunatic. In the present case the non-lunatic sister consented to the sale of her interests along with the lunatic's interest and the managers and the court have acted on such consent. She cannot now resile from the position and the respondent cannot claim as if there was independent sale to him for her share apart from the sale of the half share of the lunatic. The subject matter of the sale was the whole of the Riverdale estate and the sale is good or bad in its entirety. The attempt of the respondent at this stage to extricate the half share of the sister of the lunatic must fail.

(17) The learned counsel for the managers posed a difficulty. He submitted that the managers have given possession of the estate to the respondent pursuant to the order of the court below though no conveyance has so far been executed by reason of the stay order of this court. Of course, it is not suggested that the revision petitions have become infructuous by delivery of possession of the estate. I do not find any difficulty in the way of the managers resuming possession if the sale is not sanctioned. The managers and the respondent have acted in close co-operation with each other and with remarkable speed and haste in the matter of delivery of possession. This is a puzzling fact but it has no relevancy for the disposal of the petition.

(18) In the result C.R.P. 1634 of 1962 is allowed with costs in this court. The order of the court below in I.A. 401 of 1962 is set aside and I.A. 401 of 1962 is hereby dismissed. C.R.P. 1635 of 1962 is also allowed but without costs. The order of the court below in I.A. 402 of 1962 is set aside and that interlocutory application is restored to the file of the District Court of Salem to be disposed of afresh. The learned District Judge will hold an enquiry as required under S. 75(2) of the Indian Lunacy Act and if he is satisfied that the market value of the estate is substantially more than Rs. 5 lakhs, he can give further directions to the manager either to call for fresh offers or to hold a public auction. There will be an order accordingly.

(19) Revision allowed.


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