Chandra Reddy, J.
1. This second appeal arises out of an action brought by the appellant for partition and separate possession of his 2/5th share in an extent of 1 acre 38 cents situated in Idayakottai Zamin, Madurai district. The suit properties originally belonged to two brothers by name Vellama Naicker and Rangappa Naicker. They conveyed their 2/5 share in the family properties by two sale deeds executed in 1927 and 1929 respectively to one Koolayappa Rowther. As the vendee failed to pay the rent due to the land holder, the properties were brought to sale and were purchased by one Mutha Naicker, the manager of the Joint family of which defendants 3 to 9 were members, in 1930 and possession was taken by the auction purchasers after having obtained the necessary sale certificate. In spite of this, Gulam Muhammad, son of the said Koolayappa Rowther, sold them to the plaintiff on 14-8-1943 as if title in this property still inhered in him. On the basis of this sale deed, the present suit is filed for the reliefs mentioned above. On 16-2-1944, defendants 3 to 9 who were the surviving members of the family of which Mutha Naicker was the managing member, sold the property to defendant 10.
2. The suit was contested only by defendant 10. He filed a written statement contending that after the revenue sale, Koolayappa Rowther had no title to property and that the auction purchasers, who acquired title to this property, conveyed it to defendant 10 and that in any event as the suit was brought more than 16 years after the revenue sale it was barred by limitation.
3. The trial Court decreed the suit holding that the revenue sale was hit by Section 107, Madras Estates Land Act & therefore, the vendors did not get any title to the property and consequently they could not convey any title to defendant 10. He also found that in spite of the sale, Koolayappa Rowther, the predecessor-in-interest of the plaintiff continued to be the owner thereof and that the sale in favour of the plaintiff passed valid title to the property. In his opinion the suit was not barred by limitation and the plaintiff could recover possession of the property at any time ignoring the sale.
4. On appeal, the learned Subordinate Judge came to a contrary conclusion on the effect of Section 107, Madras Estates Land Act on the revenue sale and also on the question of limitation. In the result, he allowed the appeal and dismissed the suit with costs.
5. The plaintiff, who is dissatisfied with the decree and judgment of the learned Subordinate Judge, has preferred this second appeal. It is urged by Mr. K. S. Ramamurthi in support of the appeal that the revenue sale is hit by Section 107 of the Madras Estates Land Act and is void, and consequently, title to the property still vested in the family of the plaintiff's vendors and that the plaintiff is entitled to recover possession of the same. On the other hand it is submitted on the other side that the sale is not governed by the provisions of Section 107, Madras Estates Land Act.
6. The first question I have, therefore, to consider is whether the sale is void for contravention of Section 107. Section 107 of the Madras Estates Land Act runs thus:
'No officer holding a sale of property under this Act and no person employed by or subordinate to such officer shall either directly or indirectly bid for, acquire or attempt to acquire any interest in any property sold at such sale.'
It is seen this section expressly prohibits the bidding or the purchasing of the property not only by the officers holding the sale but also by a person subordinate to such an officer. In this case, it was the Revenue Inspector that held the sale and it cannot be denied that a village munsif is a subordinate of the officer, who held the sale. Defendant 6, who was a member of the family of which Mutha Naicker was the manager, was holding the office of the village Munsif at the time the sale was held. The point for consideration is whether the fact that one of the members of the family was a subordinate of the officer holding the sale renders the sale an invalid one.
7. Section 107, Madras Estates Land Act prohibits either the officer holding the sale or any subordinate of his from acquiring any interest not only directly but also indirectly in the property sold at such a sale. It cannot be controverted that a junior member of a joint family acquires an interest in the property purchased by the manager of the family. The intendment of the section appears to me to be that persons, who have special opportunities of knowing the details about the property, should not be allowed to bid or buy the property as they are likely to misuse the opportunities they have. If the argument that although an officer or his subordinate is prohibited from directly buying or acquiring any interest in the property brought to sale the other members of the family could bid for the property, is accepted, the provisions of the section can be rendered nugatory. It will then be open to the officer concerned to acquire the property indirectly through other members of his family. It looks to me that Section 107, Madras Estates Land Act applies to a case like the present one. This view of mine gains support from a passage in Lewin on Trusts, 15th Edn., p. 799,
'The partner of a trustee or any other person through whom the trustee may directly or indirectly derive benefit by reason of the purchase cannot purchase the trust property from the trustee.'
The principle enunciated there applies equally to a member of a joint family of the officer holding the sale or of his subordinate. There does not seem to be any difference in principle between these two cases. It may also be mentioned that in -- 'Veeranna v. Lakshmipati Somayajulu', AIR 1939 Mad 797 (A), a Bench of this Court expressed the opinion that the prohibition contained in Section 107, Madras Estates Land Act is an absolute one and not a conditional one. What emerges from this discussion is that the purchase made by Mutha Naicker was obnoxious to the provisions of the Madras Estates Land Act and, therefore, is an invalid one.
8. This leads me to the next point whether the sale is void or is voidable. If the sale is void, it need not be set aside, and the plaintiff can recover the property from the auction purchasers or their successors in interest, ignoring the sale. In my judgment, the sale is voidable and not void and, therefore, has to be set aside, within the time prescribed by Article 12(b), Limitation Act. This view obtains support from various decisiona not only of this Court but also of other High Courts as well. In -- 'Radhakrishna v. Bisheshar Sahay', AIR 1922 P. C. 336 (B), the provisions of Order 21 Rule 72, which contains a prohibition similar to the one in Section 107, Madras Estates Land Act fell to be considered by the Privy Council. Their Lordships expressed the opinion that a purchase at an execution sale by the decree-holder or his agents without the leave of the Court is only voidable and not void and a suit to set it aside must be brought within one year under Article 12, Limitation Act. This was followed by Sundaram Chetty J. in -- 'Chinnakannu Pada-yachi v. Paramaslva : AIR1927Mad1135 . There a sale was held in contravention of the provisions of Section 99, T. P. Act corresponding to the present Order 34 Rule 14, Civil P. C. and there was also an infringement of the provisions of Order 21 Rule 72, Civil P. C. for the reason that the property was purchased by a pleader of the decree-holder without the leave of the Court. The learned judge held that the sale (which took place prior to 1908) in violation of the provisions of Section 99, T. P. Act and also of Order 21 Rule 72 did not make the sale void and it was only voidable, and had to be set aside under the appropriate article of the Limitation Act.
9. This principle was applied by Somayya J. in -- 'Velliappa Chettiar v. Muthu Koundan : (1941)2MLJ943 . In this case, the learned Judge was concerned only with the contravention of the provisions of Order 21 Rule 72, which runs thus:
'No holder of a decree in execution of whichproperty is sold shall without the express permission of the Court bid for or purchase the property.
2. Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may subject to the provisions of Section 73, be set off against one another and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.
3. Where a decree-holder purchases, by himself or through another person, without such permission, the Court may if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order and any deficiency of price which may happen on the resale & all expenses attending it, shall be paid by the decree-holder.'
10. A case more in point is to be found in the decision reported in -- 'Jamuna Prosad v. Motilal', : AIR1950Cal63 (E). In that case also, when the properties were brought to sale, the pleader for the decree-holder purchased the properties without the leave of the Court. It was found that the sale was hit by Order 21 Rule 73 in that the pleader was an officer of the Court.
11. Order 21 Rule 73 enacts:
'No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold'.
In view of the mandatory provisions of the rule, it was contended that the sale was a nullity. This was met by the learned Judges in the following words:
'It cannot be affirmed as a proposition of universal application that non-compliance with every imperative provision of law renders the proceedings a nullity. The question depends on the nature, scope and object of the particular provision, which has been violated.'
The learned Judges further observed that the rule in question was intended for the benefit of the decree-holder and the judgment-debtor and could be waived by them without any infringement of public right or policy. In the result, the learned Judges found that the sale was only voidable and it was valid till it was set aside and not void. They relied upon the decision in -- Ashu-tosh Sikdar v. Beharilal Kirtania', 35 Cal 61 (F). In this context, the observations of Coleridge J. in -- 'Holmes v. Russel', 1841 9 Dowl. 487 (G), may be usefully extracted :
'It is difficult sometimes to distinguish betweenan irregularity and a nullity but the safest ruleto determine what is an irregularity and whatis a nullity is to see whether the party canwaive the objection; if he can waive it, itamounts to an irregularity, if he cannot, it isa nullity.'
I express my respectful accord with the principle enunciated in these cases. The provisions ofSection 107, Madras Estates Land Act are analogous tothose of Order 21 Rule 73, C. P. C., and the policy underlying both seems to be the same.
12. It follows on this discussion that although the sale in question was invalid for the reason that the provisions of Section 107, Madras Estates Land Act were infringed, it was not void in the sense that the plaintiff could recover the property ignoring the sale but was only voidable and was valid till set aside within the time prescribed by Article 12, Limitation Act.
13. In this view of the matter, it is unnecessary for me to go into the question whether, if, the sale is void, the suit will be governed by Article 142 or Article 144, Limitation Act and if Article 144 is applicable whether the auction purchasers, acquired any title to the property by adverse possession. Even if it were necessary to decide this point, I have no hesitation in coming to the conclusion that the original owner Koolayappa. Rowther lost title to the property by reason of the auction purchasers having remained in possession of the property for over the statutory period in assertion of title hostile to the real owners. On any ground, the suit is liable to be dismissed. For these reasons, I hold that the decision of the lower appellate Court allowing the appeal filed by the defendants against the judgment of the District Munsif decreeing the suit is right and ought to be affirmed.
14. In the result, the appeal is dismissed withcosts. No leave.