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M.S. Kalyanasundaram Ayyar Vs. M.S. Subramanya Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 17 of 1950
Judge
Reported inAIR1954Mad675; (1954)IMLJ507
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 34, Rule 14; Limitation Act, 1908 - Sections 6 and 14 - Schedule - Article 12; Hindu Law
AppellantM.S. Kalyanasundaram Ayyar
RespondentM.S. Subramanya Ayyar and ors.
Appellant AdvocateD. Ramaswami Ayyangar and ;P.S. Srinivasa Dasikan, Advs.
Respondent AdvocateG.R. Jagadeesa Iyer and ;N.K. Ramaswami, Advs.
DispositionAppeal allowed
Cases ReferredChandrayya v. Seethanna
Excerpt:
code of civil procedure (act v of 1908), order xxxiv, rule 14--transfer of property act (iv of 1882), section 99--sale in contravention of--voidable--limitation for setting aside--limitation act (ix of 1908)--article 12(a)--applicability of;a sale of mortgaged property in contravention of section 99 of the transfer of property act or of order xxxiv, rule 14, civil procedure code, is only voidable and not void and it is beinding on the parties unless it is set aside. it does not matter whether the person who impugns the sale was in fact a party to teh proceedings or claims under one who was a party. the violation of the provisions of order xxxiv, rule 14, civil procedure code, confers on the person affected the right to have the sale set aside by way of suit, the limitation for such a.....1. while dismissing s. a. no. 1106 of 1945, baghava rao j. granted leave for a further appeal as against the eighth respondent therein and refused leave as against the fifth respondent. under those circumstances, the appellant has preferred the above letters patent appeal against the eighth respondent in the second appeal who was the 13th defendendant in o. s. no. 23 of 1942 on the file of the additional subordinate judge's court of mathurai out of which these proceedings have arisen.2. the plaintiff-appellant is the eldest son of the first defendant whose other sons are defendants 2 to 4 & they are members of a joint hindu family. the suit was one for partition and separate possession of the plaintiff's share in .the joint family properties. the 13th defendant, who is the contesting.....
Judgment:
1. While dismissing S. A. No. 1106 of 1945, Baghava Rao J. granted leave for a further appeal as against the eighth respondent therein and refused leave as against the fifth respondent. Under those circumstances, the appellant has preferred the above Letters Patent Appeal against the eighth respondent in the second appeal who was the 13th defendendant in O. S. No. 23 of 1942 on the file of the Additional Subordinate Judge's Court of Mathurai out of which these proceedings have arisen.

2. The plaintiff-appellant is the eldest son of the first defendant whose other sons are defendants 2 to 4 & they are members of a joint Hindu family. The suit was one for partition and separate possession of the plaintiff's share in .the joint family properties. The 13th defendant, who is the contesting respondent both in the second appeal and in this Letters Patent Appeal, was impleaded as an alienee of certain joint family properties and the plaintiff claimed his share in those properties as well. The 13th defendant's contention, which alone need be noted at this stage, is that under a valid decree and execution-sale against the first defendant representing the joint family, she has purchased those properties in court auction and that the properties were no longer liable to be partitioned. Both the lower courts, as well as Raghava Rap J. have upheld her contentions though for different reasons. How the 13th defendant came to acquire the right in the properties may be shortly stated.

3. On 12-11-1934, the first defendant executed Ex. D-34 a mortgage for a sum of Rs. 5000. On the same date under Ex. P-2, the self-same properties were leased back by the mortgagee to the first defendant for a period of three years on a rental of Rs. 400 per year. The mortgage and the lease deed were to be coterminous, i.e., the mortgage was to enure for a period of three years before redemption and the lease was to be for a period of three years from the date when the mortgagee-lessor granted to the mortgagor-lessee the lease under Ex. P-2. There was a stipulation that the rent of Rs. 400 will be paid yearly. As the first defendant did not pay one instalment, the I3th defendant filed O. S. NO. 302 of 1936 on the file of the District Munsif's Court of Tiru-mangalam and got a simple money decree for the amount (Ex. D-41, dated 24-2-1937).

In execution of that decree, the equity of redemption of the mortgagor was put up for sale which was confirmed on 29-3-1938, and the 13th defendant recovered possession in execution of the sale certificate on 3-8-1940. On 27-9-1940, the plaintiff became a major and the suit for partition was filed in the District Munsif's Court of Tirumangalam on 5-3-1941. It was returned for presentation to the proper Court, as the pecuniary value exceeded the jurisdiction of the District Munsif's Court on 23-12-1941 being the last date on which the District Munsif's Court closed for the Christmas holidays. The plaint was re-presented in the Subordinate Judge's Court of Mathurai on 2-1-1942, the reopening date after the Christmas holidays.

4. The basis of the plaintiff's claim for disputing the 13th defendant's right to the properties is that the Court sale, and the purchase by the 13th defendant, contravened Order 34, Rule 14, Civil P. C. in that the decree for arrears of rent obtained in O. S. No. 302 of 1936 was a decree for payment of money in satisfaction of a claim arising under the mortgage, and therefore the 13th defendant was not entitled to bring the mortgaged property to sale in execution of a claim arising under the mortgage, she not having had recourse to instituting a suit for sale in enforcement of the mortgage. On that plea, the question arose as to whether the mortgage Ex. D-34 and the lease Ex. P-2 were parts of one and the Game transaction in order that the rent under the lease deed would be the interest on the mortgage with the result. that the claim under the lease would be for payment of money in satisfaction of a claim arising under the mortgage. Both the lower Courts, on an examination of certain authorities, having come to the conclusion that the two documents Ex. D-34 and Ex. P-2 are Independent and not correlated to each other, held that they cannot be read as parts of one and the same transaction, the result being that Order 34, Rule 14, Civil P. C., was not a bar to the sale in execution of the decree in O. S. No. 302 of 1936.

It is mainly, on this ground that the suit as against the 13th defendant was dismissed. The learned District Judge observed that the claim for rent under Ex. P-2 which merged in the decree In O. S. No. 302 of 1936 was not one "for payment of money in satisfaction of a claim arising under the mortgage" within the meaning of Order 34, Rule 14, Civil P. C. The learned Judge further went into the question as to how far the sale would be void as against the plaintiff; and after a consideration of the various authorities cited before him expressed the opinion that if the sale in execution of the decree in O. S. No. 302 of 1936 had been one in contravention of Order 34, Rule 14, Civil P. C., he would have accepted the plaintiff's contention that the sale was void as against him and his minor brothers. But as he found on the larger issue that the mortgage, and the lease-back, were not parts of one and the same transaction the plaintiff was disentitled to any relief as against the 13th defendant.

5. Raghava Rao J. in the second appeal was Inclined to agree with the appellant's contention that the two documents, Exs. D-34 and P-2 of the same date must be regarded as parts and parcels of one and the same transaction and that the decree for arrears of rent under Ex. P-2 was really a decree for payment of money in satisfaction of a claim arising under the mortgage evidenced by Ex. D-34. Having acceded to the appellant's contention to that extent, he proceeded to discuss the question of law, viz., how far the sale in contravention of Order 34, Rule 14, Civil P. C., would be void as against the plaintiff. The learned Judge's view was that since the first defendant, the father, was entitled to represent the family, and as such the plaintiff also, In the mortgage Ex. D-34 and the lease deed Ex. P-2 as well as in O. S. No. 302 of 1936, his representative capacity would not in any way be lessened even if the sale was in contravention of Order 34, Rule 14, Civil P. C.

Under these circumstances, the learned Judge took the view, following the decision in -- 'Panchapagesa Aiyar v. Rajamani Aiyar', AIR 1947 Mad 72 (A), that the sale was only voidable as against the plaintiff and since, according to him, no suit has been brought within one year of the date of confirmation as contemplated by Article 12(a), Limitation Act, the plaintiff cannot have any remedy as against the thirteenth defendant. Apparently the learned Judge did not go into all the facts to ascertain whether the suit was brought within a year of the plaintiff having attained majority especially since at the time of the filing of O. S. No. 302 of 1936 and the sale in execution of the decree thereof, he was a minor. Therefore, if we agree with the learned Judge that the sale was only voidable as against the plaintiff and his minor brothers, because it was held in contravention of the provisions of Order 34, Rule 14, Civil P. C., then we will have to go into the question regarding the applicability of Article 12(a), Limitation Act read with Section 6, Limitation Act. Further the application of Section 14, Limitation Act, will also have to be considered in relation to the exclusion of time on account of proceedings 'bona fide' taken in the District Munsif's Court, which had no jurisdiction to entertain the suit.

6. We have no hesitation in holding that Ex. D-34 and Ex. P-2 are part and parcel of one and the same transaction and therefore the decree In O. S. No. 302 of 1936 was one for payment of money in satisfaction of a claim arising under the mortgage. It is unnecessary to refer to the large body of case-law wherein such documents have been considered as parts of the same transaction, for the reason that Mr. Jagadjsa Aiyar for the respondent has not been able to convince us that the view expressed by Raghava Rao J. that the two documents, should be read as parts and parcels of the same transaction is in any respect unsustainable. It is only necessary to refer to --'Abdullah Khan v. Basharat Hussain', 35 All 48 (PC) (B); -- 'Chinnapayan v. Narayana Pattar', AIR 1940 Mad 59 (C) and -- 'Lakshmi Kutti v. Mariathumma Thithumma', AIR 1925 Mad 127 (D) and various other cases, the most recent one being -- 'Kuttyal v. Sanjiva Rao', (E).

7. Having therefore come to the conclusion that the decree in O. S. No. 302 of 1936 was for payment of money arising under the mortgage, in view of the provisions of Order 34, Rule 14, Civil P. C., the mortgaged property cannot be brought to sale for the realisation of that amount. The question theft is whether such a sale is void, or is voidable. At p. 1125 of the 12th Edn. of Mullah's Civil P. C., the learned Commentator observes as follows:

"Sale made in contravention of this rule is voidable, not void. It was at one time thought that a sale made in contravention of this rule was absolutely void and that the purchaser at such sale was not, therefore, entitled to recover possession from the mortgagor, and that if he did acquire possession, he was bound to account for the rents and profits realised from the mortgaged property during the term of his possession. Bub this view is no longer tenable, and it has been held in recent cases that a sale in contravention of this rule is not void, but only voidable at the instance of the mortgagor or any other person interested in the equity of redemption.

The sale, in other words, is valid until it is set aside. The procedure to set aside the sale is by way of application under Section 47; a separata suit is barred under that section. The application must be made before confirmation of the sale unless the applicant proves that owing to fraud or other reasons he was kept in ignorance of the sale proceedings preliminary to sale. The sale cannot be set aside after it is confirmed by the court. Nor is it open to the mortgagor, after confirmation of the sale, to redeem the mortgage, whether the property has been purchased by a third person or by the mortgagee himself. The mortgagor who wishes to redeem must first apply and have the sale set aside."

But it has to be remembered that in this case the person who attacks the sale was not 'eo nomine' a party to the suit and therefore an application under Section 47, Civil P. C., cannot be said to be the proper remedy. Decisions of this Court have held that if a decree was obtained against the manager of a joint family, whether he is a father or other member, and in execution thereof the properties have been sold, if another member of the family, not being a party to suit, wants to question the correctness of the decree or sale, he has no right to proceed in execution under Section 47, Civil P. C. but must bring a suit to establish his claim. Therefore, so far as the plaintiff is concerned, though in certain respects his father represented him in the suit, still we have to hold that the remedy is only by way of a separate suit and not having recourse to Section 47 of the Code. On that basis we have to ascertain whether the decree in O. S. No. 302 of 1936 was void as against the plaintiff, or was only voidable.

8. Raghava Rao J. relied upon -- 'AIR 1947 Mad 72 (A)', for holding that the sale in contravention of Order 34, Rule 14, Civil P. C., is only voidable even as against the sons and grandsons of the Hindu judgment-debtor and if the same is not set aside by way of suit within the period of limitation, then the same would be binding upon him or them. The fact that the son or grandson was not 'eo nomine' a party to the suit is of no consequence, as the interest of the son or grandson is capable of being sold in execution 06 the decree against the father. Chandrasekhara Aiyar J. followed the decision in -- 'Chinnakannu Padayachi v. Paramasiva Mudaiiar", AIR 1927 Mad 1135 (P) & -- 'Lal Bahadur Singh v. Abharan Singh', AIR 1915 All 70 (G), for holding that the sons and grandsons would be bound by the sale even where it was held in contravention of Order 34, Rule 14, Civil P. C., and that if the sale is not set aside within the period of limitation, it will bind them.

In those proceedings, the learned Judge's attention was invited to a Full Bench decision in --'Muthuraman Chetti v. Ettappasami', 22 Mad 372 (H) but he distinguished that decision on the ground that at the time that decision came into existence it was thought that such sales held in contravention of Order 34, Rule 14, Civil P. c., would be void but having regard to the change of view effected by the Privy Council in -- 'Mallikarjun v. Narhari', 25 Bom 337 (I). certain observations contained in -- '22 Mad 372 (H)' can no longer be held to be good law.

9. Mr. Ravnaswami Aiyangar for the appellant very strongly contests the position taken up by Chandrasekhara Aiyar J. and followed by Raghava Rao J . what he contends is that up to this date there is no decision of this Court which has definitely declared that -- '22 Mad 372 (H)' is no longer good law. His chief reliance is on the observations of Shephard J. at p. 376 where the learned Judge made the following observations:

"Such being the purpose of the Legislature, I think it is clear that although a sale in contravention of the section (Section 99, T. P. Act corresponding to Order 34, Rule 14, Civil P. C., is not absolutely void for all purposes, it is at least void against all persons who were not parties to the suit in which the decree for money was obtained."

From these observations we are asked to hold that in that Full Bench decision there is a distinction at least as regards the persons who were not parties to the decree, against whom the sale will be held to be void, whatever might be said with regard to the binding nature against those who are parties to the same. We shall first of all deal with the Madras cases which have been cited before us, where the principle laid down in -- '22 Mad 372 (H)', has come up for consideration.

10. Where a mortgagee sued the mortgagor for on instalment of the mortgage debt and obtained a simple money decree, in execution of which the mortgagee brought to sale and purchased the mortgaged property, when a suit was filed by the mortgagor to redeem the mortgaged property, Benson and Wallis JJ. following -- '22 Mad 372 (H)' held in -- 'Venkayya v. Surayya Garu', 30 Mad 362 (J), that the mortgagor having been a party to the decree and the order for sale, was not entitled to redeem. But in this case there was no question of anybody other than parties to the decree or sale coming up at a later stage to question the validity of the sale and therefore the observations in -- '22 Mad 372 (H)' with regard to persons other than parties to the decree and sale did not actually come up for approval or dissent by the two Judges.

11. The next case in which a similar question was raised is in -- 'Arjuna Reddi v. Venkatachala Asari', AIR 1917 Mad 592 (K), where it was held that a sale in contravention of the provisions of Section 99, T. P, Act is voidable and not void and that if no objection is taken to the confirmation of the execution sale on that ground and the sale is confirmed, the mortgagor has no longer any right to redeem the mortgage. The learned Judges referred to -- '22 Mad 372 (H)' and other cases but followed the observations in -- 'AIR 1915 All 70 (FB) (G)'. Even here there was no question of any one other than parties to the decree and sale coming up at a later stage and questioning the sale.

But in the case in -- 'AIR 1927 Mad 1135 (P)', where Sundaram Chetti J. followed the earlier cases and held that a suit by a mortgagor's son for redeeming the property after the equity of redemption had been sold in execution of a money decree on a claim arising under the mortgage and purchased by the mortgagee was not maintainable, because a sale in contravention of the provisions of Section 99, T. P. Act is voidable and not void, and if the mortgagor's son failed to take any objection to the confirmation of the sale on the ground that it was contrary to Section 99, T. P. Act and the sale was confirmed, the mortgagor's son has no right to redeem the mortgage. He relied upon -- 'AIR 1917 Mad 592 (K)'; -- 'AIR 1915 All 70 (PB) (G)'; -- '30 Mad 362 (J)' and -- 'Uttam Chandra Das v. Raj Krishna Dalal', AIR 1920 Cal 363 (L).

12. Rajamannar J. as he then was, in -- 'S.A. No. 2397 of 1944 (L1)', had cited before him -- '22 Mad 373 (H)' and the contrary view taken in --'AIR 1915 All 70 CFB) (G)' as well as the decision of Shadi Lal C. J. in -- 'Bansi Dhar v. Md. Sule-man', AIR 1926 Lah 490 (M). The learned Judge held that -- '22 Mad 372 (H)' was binding on him despite the observations contained in the other cases. But even there, there was no question regarding a person not being a party to the decree or sale coming up at a later stage to question the sale. What happened in -- 'S. A. No. 2397 of 1944 (L1)' was that a minor, after unsuccessfully resisting an attachment came up by a suit under Order 21, Rule 63, Civil P. C. The points which actually have arisen here did not come up for decision there. Therefore, Mr, Ramaswami Aiyangar contends that the observation in -- '22 Mad 372 at p. 376 (H)' that although a sale in contravention of Section 99, T. P. Act is not absolutely void for all purposes, It is void against all persons who were not parties to the suit in which the decree for money was obtained, is still good law and such being the case the decree and sale are void as against the present appellant and therefore the suit for partition is sustainable. We have therefore, to see how far this contention can be justified.

13. The matter had been discussed at great length in a few Calcutta cases to which reference should now be made. In a very exhaustive Judgment delivered by Ashutosh Mukerjee J. In --'Ashutosh Sikdar v. Behari Lal Kirtanla', 35 Cal 61 (PB) (N) at pp. 65 onwards the learned Judge analysed and classified the previous cases on the subject into three divisions; the first of such divisions was that when there had been, in existence, a line of cases which held that a sale of mortgaged property by a mortgagee in execution of a money decree in contravention of the provisions of Section 99. T. P. Act passes no title whatever to the purchaser. In the second class of cases it was held that a sale in contravention of Section 99 is an illegal sale which requires to be set aside in order that it may cease to be operative. The third class of cases was to the effect that a sale held contrary to the provisions of Section 99 is not a nullity and that though voidable, yet even if it is not formally annulled. It does not affect the right of redemption of the mortgagor.

Considering the first of the classes the learned Judge came to the conclusion that a sale held contrary to the provisions of Section 99, T. P. Act cannot be absolutely null & void as if it were a sale held without jurisdiction. With regard to the second class he was of opinion that the sale has to be set aside, but in such a matter it was unnecessary to prove any irregularity or substantial injury as would be requisite in a case under the old Section 311, Civil P. C., i.e., Order 21, Rule 90 of the present Code. But. when it is proved that Section 99, T. P. Act has been contravened, the sale must beset aside. On the third question regarding the extinguishment of the mortgagor's right to redeem, it was thought unnecessary to express any opinion; but in the judgment the Full Bench of five Judges of the Calcutta High Court were decidedly of opinion that after the decision in -- 'Khairaj-mal v. Daim', 32 Cal 296 (O) by the Privy Council a sale held in contravention of Section 99, T. P. Act is not a nullity but is an irregular and voidable sale.

It was further held that the sale can be avoided before confirmation by an application under Section 47, Civil P. C. without any necessity on the part of the applicant to show anything more than, that the provisions of the T. P. Act have been contravened. But after confirmation, the sale can be avoided under Section 47, Civil P. C. provided that the applicant proves that owing to fraud or other reasons he was kept in ignorance of the sale proceedings preliminary to sale. The facts of the case show that the decree-holder, mortgagee, and the purchaser in court-auction were one and the same person and that no question of any Joint family arose in that case.

14. The third class of cases enumerated by Mukherjee J. on which there was no expression of opinion as to whether the mortgagor has lost the equity of redemption by the confirmation of such gale again came up for consideration by another Full Bench in -- 'AIR 1920 Cal 363 (L)', Where the learned judges again, after a very exhaustive discussion of the case-law, were of opinion that where a mortgagee, in contravention of Section 99, T. P. Act, attached the mortgaged property and brought it to sale and purchased it himself, the mortgagor or his transferee cannot successfully maintain a suit for redemption of the mortgaged property without first getting the sale set aside. That Is if there had been no application to have the sale get aside as provided by law and as explained in -- '35 Cal 61 (N)', when once the sale gets confirmed, a suit by the original mortgagor-judgment-debtor to redeem the mortgage would not lie.

Mukerjee J. considered -- '22 Mad 372 (H)' as an authority for the second series of legal propositions which he has laid down, viz., that a sale in contravention of Section 99 is not a nullity but is voidable and has to be set aside. The facts of -- '23 Mad 372 (H)' show that the plaintiff in that case who claimed the property was not 'eo nomine' a party to the decree, or sale of the property, and therefore the observations of Shephard J. which we have extracted above would show that- so far as euch a person is concerned the decree would foe void or a nullity. It is a matter of doubt as to how far the classification of -- '22 Mad 372 (H)' in the second category by Mukherjee J. Is correct on the facts. But whatever that might be, the Calcutta High Court seems to have taken it that after the decision of the Privy Council in -- '32 Cal 296 (O)', a sale in contravention of Section 99, T, p. Act or Order 34, B. 14, Civil P. C. would not be absolutely null and void but would only be an irregular one.

15. When a similar matter came up for decision before the Bombay High Court in -- 'Tuka-ram Rangarao v. Subhedar Nanaji', AIR 1936 Bom 177 (P), the learned Judges 'followed the decision in -- '35 Cal 61 (N)' and -- 'AIR 1920 Cal 363 (PB) (L)' and held that the sale to the mortgagee in contravention of Order 34, Rule 14, Civil P. C. was not a nullity and that the mortgagor is bound to follow the procedure allowed by the law to get the sale set aside; otherwise his right to redeem gets barred. The facts show that the plaintiff in that case was the son of the original mortgagor against whom the mortgagee had obtained a decree for arrears of rent and In execution thereof the mortgagor's equity of redemption had been sold and purchased by the mortgagee. It is therefore clear that the plaintiff was not a party to the original proceedings.

The decision in -- '22 Mad 372 (H)' was not cited by the Judges of the Bombay High Court but they took it for granted that after the decision in --:32 Cal 296 (PC) (O)', the sale would not be a nullity for want of Jurisdiction but would only be an irregular one in procedure which is avoidable by proper proceedings. The learned Judges also did not make any distinction as to who the person was who wanted to have the sale set aside. The same principle would apply both to the original mortgagor, who was a party to the decree and sale, ;as well as to any one else, like a son or grandson who claims to be entitled to the property by reason of being a member of the Joint family.

The learned Judges dissented from the view taken in -- 'Martand v. Dhondo', 22 Bom 624 (Q). which was to the effect that a purchase of the equity 'of redemption by the mortgagee in contravention of Section 99, T. P, Act would be a nullity and .for this dissent they relied upon -- '32 Cal 296 (PC) (O)' The ruling in -- '22 Bom 624 (Q)' had been followed in Madras in -- '22 Mad 372 (H)'; and when later on, the Bombay High Court itself has held that -- '22 Bom 624 (Q)' did not lay down the correct law, we have to take It that -- '22 Mad 372 (H)', as it is based on -- '22 Bom 624 (Q)', does not also lay down the correct law so far as Bombay was concerned.

16. In -- 'Sidheshvar Martand v. Ganpatrao Bhaurao', AIR 1926 Bom 303 (R), Sir Norman !Macleod Kt. C. J. and Coyajee J. have also laid down that -- '22 Bom 624 (Q)' can no longer be considered as an authority after the decision in -- '32 Cal 296 (PC) (O)'. Therefore, so far as the Bombay High Court is concerned, the view laid down in the earlier Bombay cases, which found favour with the Madras High Court in. --'22 Mad 372 (H)' could no longer be considered to be good law. The other High courts which have considered similar questions are the Allahabad, Lahore and Patna High Courts.

17. A Pull Bench of the Allahabad High Court in -- 'AIR 1915 All 70 (G)' held that If a mort-gagee brings the mortgaged property to sale in contravention of the provisions of &. 99, T. p. Act, such a sale is not void but merely voidable; Mid when once such a sale is confirmed, the auction purchaser obtains an indefeasible title to it and the right of the mortgagor, and those who represent him to redeem, is absolutely extinguished. The grandsons and the great grandsons of the original mortgagor against whom the decree had been obtained, were the plaintiffs & they claimed to be in possession of the property and wanted a declaration that they were entitled to redeem the mortgage. The Pull Bench of the Allahabad High Court held that they were not entitled to do so. There is no reference in this decision to --'22 Mad 372 (H)', but the learned Judges have considered the effect of -- '32 Cal 296 (PC) (O)' for holding that such a sale would not be a nullity but is only voidable.

18. An instructive decision- on this topic bad been pronounced by Shadi Lal C. J. and Cold-stream J. in -- 'AIR 1926 Lah 490 (M)'. The learned chief Justice considered the earlier cases and took the view that a sale of the equity of redemption in execution of a decree for money due under the mortgage is not void, but is voidable at the instance of the mortgagor, or any other person interested in the equity of redemption. He further proceeds to say that not only is the sale of the equity'of redemption binding on the parties until it is set aside, but the principle is firmly established that the procedure to set aside the sale is by way of an application under Section 47, Civil P. C., and that the application must be made before the sale is confirmed by the court.

Such being the case, a suit to set aside a sale cannot be maintained, though it may be gathered from the observations that if a person, not s party to the sale but who is affected by the sale, brings a suit within one year under Article 12(a), Limitation Act, then, subject to certain conditions such a suit would also lie. The decision in --'32 Cal 296 (PC) (O)' is described by the learned Chief Justice as the 'locus classicus', on the subject. Reference is also made to -- '35 Cal 61 (N)'; -- 'AIR 1920 Cal 3(53 (PB) (L)'; -- 'Bhaichand Kirpa-ram v. Ranchhoddas Manchharam', AIR 1921 Bom 285 (S); --'30 Mad 362 (J)'; --'AIR 1915 All 70 (G)' as well as to -- 'Sheo Naraln Ojha v. Rom Jatan Ojha', AIR 1917 Pat 608 (T), all for the position that such a sale is not void but only voidable.

Finally it is stated that now there is complete unanimity of judicial opinion in favour of the proposition that a sale of the mortgaged property in contravention of Section 99, T. P. Act, or Order 34, Rule 14, Civil P. C. is only voidable and that it is binding on the parties until it is set aside. Reference has been made in this case to -- '22 Mad 372 (H) & to the later decision in -- '30 Mad 362 (J)' which in certain respects is at variance with -- '22 Mad 372 (H)', but in other respects is in conformity with it.

One thing is clear that this decision positively takes the view that a sale of the kind in question cannot be held to be void. It does not matter whether the person who brings the suit is one who was a party to the decree and sale; or whether he is somebody who claims under him. The statement of facts In that judgment at p. 431, column 1 shows that it was the grandson of the original mortgagor, along with a stranger-alienee, that commenced the suit for redemption of the property. It is therefore not a case where a party to the sale impugns the sale in separate proceedings but someone who is a member of the joint family or who claims under the party. Even in such a case, the decision lays down that the suit is maintainable. In this respect there is divergence of opinion between the views enunciated in -- '22 Mad 372 (H)' and by the Lahore High Court.

19. Two Patna cases which have been referred to are -- 'AIR 1917 Pat 608 (T) and -- 'Shan Prasad v. Bhirgunath', AIR 1929 Pat 323 (U). In the earlier of those cases, it has been held that a sale in contravention of Section 99, T. P. Act is only voidable and not yoid. It must be set aside under Order 21, Rule 90, Civil P. c. or by a suit within one year of the confirmation of the sale under Article 12(a), Limitation Act before redemption can be allowed. The plaintiffs who sought redemption of the mortgage were the original mortgagors and such being the case no question of a member of the joint family claiming to redeem the property arose in that case.

Similarly in -- 'Bhan Prasad v. Bhirgunath', AIR 1929 Pat 323 (U), a Bench of the Patna High Court consisting of Das and Fazl Ali 33. has laid down that if a mortgagee has got the mortgaged property sold under his decree without impleading the sons of the mortgagor, a suit brought by the sons for redemption of the mortgage more than one year after the confirmation of the sale does not lie unless the plaintitts ask for a decree for setting aside the auction sale, for which the period of limitation is that prescribed by Article 12(a), Limitation Act. Reference has been made to another decision of the Patna High Court in -- 'Bhola Jha v. Kali Prasad', AIR 1917 Pat 693 (V). No point arises in this case regarding the application of Order 34, Rule 14, Civil P. C. and as such we are not concerned with the expression of opinion of the learned Judges. But the decision in -- 'AIR 1917 Pat 608 (T)' is on similar facts.

20. It is therefore clear that all the other High Courts, where this question actually arose for consideration, have consistently and unanimously taken the view that a sale in such circumstances is only voidable and not void. It does not matter whether the person who impugns the sale was in fact a party to the proceedings, or claims under one who was a party.

21. A Bench of the Chief Court of Oudh in a case reported in -- 'Sheo Darshan Singh v. Kun-war Maheshur Dayal', AIR 1935 Oudh 183 (W) came to the same conclusion that the sale is only voidable and not altogether void. Curiously enough, any decision of the Calcutta High Court, or the Lahore High Court was not noticed by the learned Judges. But they followed -- 'AIR 1926 Bom 303 (R)' and noticed the dissent from the earlier decision in -- '22 Bom 624 (Q)'. In view of this consensus of judicial opinion among all the High Courts that a sale in contravention of Section 99, T. P. Act, or Order 34, Rule 14, Civil P. C., is not void but only voidable, even where the person who objects to it was not a party to the sale, we have to take it that the observations of Shephard J. in -- '22 Mad 372 (H) can no longer be held to lay down the correct view.

But Mr. Ramaswami Aiyangar, by referring to certain dicta contained in the commentaries on the Transfer of Property Act by Shephard and Brown at pp. 535 and 536, still argues that even after -- '32 Cal 296 (PC) (O)'. the son of a Hindu mortgagor, who was not a party to the decree in execution of which the sale was effected, notwithstanding the sale, is entitled to sue for redemption. For that position the authority relied upon is --'22 Mad 372 (H)'. It is interesting to note that one of the learned commentators was the Judge who pronounced the decision in -- '22 Mad 372 (H)' and the commentary was written as early as 1910, when at least some of the decisions of the Calcutta, Bombay, Lahore and Patna High Courts had not come into existence.

22. It is really curious that there is no reported case in Madras which has, in so many terms, approved the somewhat wide observations of Shephard J. in -- '22 Mad 372(H)', though the question must have fallen for consideration on many occasions. But wherever a similar point had to be considered, as has been noticed, the trend of judicial opinion in our High Court is not in conformity with the observations contained in -- '22 Mad 372 (H)' but is somewhat opposed to it.

We have already noticed the decisions in -- '30 Mad 362 (J)'; -- 'AIR 1917 Mad 592 (K)' and -- AIR 1927 Mad 1135 (PI' in all of which there is no wholehearted support to the view expressed in -- '22 Mad 372 (H)'; whereas in -- 'AIR 1947 Mad 72 (A)', Chandrasekhara Aiyar J. has definitely stated that after -- '25 Bom 337 (I)', the observations in -- '22 Mad 372 (H)' can no longer be followed as good law. Having carefully considered all the different facts of this question, in view of the somewhat conflicting dicta contained in certain judgments, though mainly the observations are to the effect that after -- '32 Cal 296 (PC) (O)' such a sale is only voidable and not void, we have no hesitation in agreeing with the view taken in -- 'AIR 1947 Mad 72 (A)'.

23. Mr. Ramaswami Aiyangar had to concede that the first deft, could represent his sons, the plaintiff and defendants 2 to 4, in O. S. No. 302 of 1936 and any decree obtained against the first defendant would be binding on the sons; because, as the head and 'kaitha' of a joint family, apart from his position as the father, the first defendant had full power to represent the joint family. A decree obtained against the first defendant 'bona fide' would be biniding on all the other members of the family unless the other members can later on show that there was fraud, collusion, or negligence on the part of the first defendant In the conduct of the suit. This position Is now firmly established after the Full Bench decision in --'Venkatanarayana v. Somaraju', AIR 1937 Mad 610 (X) and the Bench decision in -- 'Krishna-murti v. Chidambaram', AIR 1946 Mad 243 (Y).

One of us had to consider the effect of such representation in -- 'Papanasam Chettiar v. Muthayya Chettiar, AIR 1949 Mad 625 (Z), where it has been held that the proposition that a family is bound by a decree properly passed against the manager, either in respect of family property, or for a debt contracted by the manager, is well-settled, and where the suit related to joint family property, or a debt payable by the joint family, and the person sued is the manager, he need not be described as such in the plaint, though it may be advisable to do so. The observations in -- 'AIR 1937 Mad 610 (X)' had been relied upon there. Such being the case, if the first defendant could represent his sons at the time the decree was pass-ed, how he loses his representative capacity when, the sale takes place is difficult to understand.

But Mr. Ramaswami Iyengar contends that Order 34, Rule 14, Civil P. C. does not contain an imperative prohibition against the obtaining of a simple money decree for payment of money in satisfaction of a claim arising under the mortgage, but that what is prohibited is the attachment and sale of the equity of redemption pursuant to such a decree. The representative capacity of a father or manager in a joint Hindu family does not extend to a case where the act done against the family contravenes a statutory prohibition. Under; those circumstances, one has to see whether, even though the father can represent under ordinary conditions, his right to represent is taken away when something prohibited by law is done. We are unable to say that such a distinction exists. A sale to which the father may be a party in a representative capacity may be subject to illegalities and irregularities referred to in Order 21, Civil P. C., and such a sale can be set aside for prupir reasons, under Order 21, Rule 90, Civil P. C. But the fact that a sale did not conform to the provisions of the Code cannot take away from the representa-tive character of the judgment-debtor.

No authority has been placed before us for the proposition that the father or the manager loses his representative capacity when the sale takes place, even though he could represent, at the time the decree was passed. We do not feel that we can accede to the contention of the learned counsel on this point. In our opinion the sale in execution of the decree in O. S. No. 302 of 1936 was only voidable and not void, and for proper reasons the plaintiff could have brought a suit to avoid it, the limitation for such a suit being that provided by Article 12(a), Limitation Act.

24. Before we leave the subject, another point . argued by the learned counsel for the respondent, Mr. G. R. Jagadeesa Aiyar, will have to be noticed. He tried to justify the decision in -- '22 Mad 372 (H)' on the. facts of the case and stated that the question of the void nature might have been properly applied to the facts of that particular case. It was stated that the minor who later on filed the suit had a personal right apart from being a member of a coparcenary. It was a maintenance grant to the father as well as his heirs. Therefore, the person who later on brought a suit had a vested right and not being a party to the decree and sale the same were void as against him. It is unnecessary, in the view which we have taken about the decision, to draw a distinction which the learned counsel has sought to make out.

25. Having found that the sale was only voidable, we have now to consider whether the plaintiff's suit is within time. Raghava Rao J. has not adverted himself to the merits of the case. He seems to have taken it for granted that the suit was filed more than one year after the confirmation of the sale on 29-8-1938. At that time, the plaintiff was a minor. He became a major only on 27-3-1940 and though under Section 6, Limitation Act he has three years to bring a suit, that period is curtailed by Article 12(a) to one year. So, if the suit was brought within one year of 27-9-1940, then it would be in time. As a matter of fact, the plaint was filed in the District Munsif's Court of Tirumangalam on 5-3-1941, returned for representation to proper court on 23-5-1941 and filed in the Sub-Court of Madurai on 2-1-1942.

We are of opinion that the plaintiff is entitled to deduct the period during which the plaint was pending in the Tirumangalam District Munsif's Court under Section 14, Limitation Act. That being so, the presentation of the plaint in the Sub-Court of Madurai on the day after the court reopened after the Christmas vacation would be within the period of limitation. Confronted with this position, Mr. G. R, Jagadeesa Aiyar for the respondent stated that the complaint regarding the invalid nature of the sale under Order 34; Rule 14, Civil P. C. was inserted in the plaint only by means of an ammendment dated 12-3-1943 which would be more that one year even after deducting the pendency of the in fructuous proceedings for want of jurisdiction in the Tirumangalam Munsif's Court.

If a new cause of action had been added to the plaint, then his argument would be perfectly right. But what is sought to be put forward is only a reason for holding that the sale is void or voidable. Throughout, the burden of the song in the plaint is that the sale did not bind the plaintiff, but one of the reasons alleged by the amendment, of 12-3-1943 is that the sale contravened Order 34, Rule 14, Civil P. C. It cannot be said that the insertion of para. 13(a) would amount to the addition of either a new cause of action, or the substitution of any new relief. A reason put forward for the contention that the sale is invalid cannot be construed as the addition of a new cause of action. Therefore it should be taken that, by the combined operation of Sections G and 14, Limitation Act, the plaintiff's suit has been brought within the period of limitation allowed by law.

26. Mr. Jagadeesa Aiyar invited our attention to -- 'Chandrayya v. Seethanna', AIR 1940 Mad 689 (Z1), where it has been held that where an original plaint was filed within time but for want of pecuniary jurisdiction was returned by the court for presentation to proper court, and the plaintiff subsequently, with a view to bringing the claims within jurisdiction of the court which returned the plaint amended the plaint by striking out part of his claim and re-presented it to the same court, the claim was barred by limitation, because the claim as subsequently amended had become barred on the date of re-presentation; and the court which allowed the amendment and approved the plaint treating it as a continuation of the original plaint had no jurisdiction to do so. We are afraid that this decision has no application whatever for, in the present, case there is no addition or subtraction of the original claim. The original suit was one for partition and it continued to be one for partition. One of the reasons why the' plaintiff asked for partition was. later on inserted by means of the amendment. That would not either add to or subtract from the original cause of action.

27. We are satisfied that the suit docs not suffer from the infirmity of limitation. In the view which we take that the suit is not barred by limitation, the Letters Patent Appeal has to fee allowed and the decrees of both the courts below and the judgment and decree of Raghava Rao J. have to-be set aside. The suit is remanded for trial to the court of first instance to be disposed of according to law. As the question of limitation, in the manner in which it has been argued before us, viz., that even if the decree in O. S. No. 302 of 1936 was voidable, the suit is not barred by limitation, has not been put forward in such clear terms in any of the three courts, we are of opinion that the plaintiff is not entitled to any costs in any of the courts; not even before us. Court-fee in this court to be refunded. No orders on the Memo of objections.


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