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Birapalli Sreekanta Venkata Krishna Reddi Garu Vs. Dandu Venkataraju and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1677 of 1948
Judge
Reported inAIR1952Mad843; (1952)IMLJ643
ActsTenancy Law; Madras Estates Land Act, 1908 - Sections 145 and 145(2)
AppellantBirapalli Sreekanta Venkata Krishna Reddi Garu
RespondentDandu Venkataraju and ors.
Appellant AdvocateV.V. Raghavan, Adv. for ;Govt. Pleader
Respondent AdvocateK. Bhimasankaran, Adv.
Disposition Appeal dismissed
Cases ReferredSubbarayulu v. Arunachala Nadar
Excerpt:
.....clearly indicate that that fact would not make any difference in the legal situation for though the execution was started earlier, the proceedings in respect of the sale would be void as no notice of that sale was given to the transferee who was legally recognised by the landholder......the act of the transfer of a portion of a holding belonging to a pattadar, brought the holding to sale in execution of a rent decree passed against the pattadar under section 77 of the act without giving notice of the execution proceedings to the transferee. the learned judges held that the sale was void as under section 147 (1) such notice was necessary. it is true, as pointed out by learned counsel for the appellant, that on the facts of that case, the transfer of the holding was effected prior to the filing of the execution application. but a perusal of the judgment discloses that nothing turned upon that circumstances. the ratio decidendi of the decision is found at page 852. the learned judges observed : 'it is quite a different matter to say that no notice shall be given to a.....
Judgment:

Subba Rao, J.

1. The only question in this second appeal is whether the sale held in execution of a rent decree without issuing notice to the purchaser of the holding is valid.

2. The facts are simple and may be briefly stated. One Chintalapati Bapiraju had occupancy rights in the plaint schedule items. The defendant, Zamindar of Nandigudem, is the land-holder. As Bapiraju was in arrears of rent, the defendant filed S. S. No. 422 of 1940 on the file of the Deputy Collector, Kovvur and obtained a decree. On 18-8-1942, he filed E. P. No. 175 of 1942 for executing the decree. On 25-12-1942, purporting to be under the terms of an agreement dated 25-12-1939, the sons of Bapiraju sold the holding to the plaintiffs under Ex. P-1. Subsequent to the purchase, in execution of a rent decree & without giving any notice to the purchasers the holding was sold on 21-10-1943 & purchased by the Zamindar. The plaintiffs, i.e., the vendees under Ex P-l filed O. S. No. 78 of 1945 on the file of the District Munsif Court, Kovvur for a declaration that the said court sale was not binding on them inasmuch as they were not impleaded in the execution application and no notice of the sale was served on them. Both the courts held that the sale was void and gave a decree as prayed for.

3. Learned counsel for the 'appellant raised before me the following two points : (1) that the land-holder is not bound to give notice or to implead the plaintiffs as their purchase was not recognised by the land-holder under the provisions of the Madras Estates Land Act and (2) though the execution of the decree after the purchaser was recognised by the land-holder was bad, there was no duty cast on the landholder to implead the purchaser as the sale was subsequent to the filing of the execution application. The first point turns upon the provisions of Section 145(2) of the Madras Estates Land Act which is as follows :

'Where a holding or any portion thereof is transferred by the act of a ryot, the landholder on receiving notice thereof in writing from the transferor and the transferee shall recognise the transfer.'

In this case, the evidence accepted by the court below establishes that a notice in writing signed by the transferor and the transferee was received by the land-holder. P. W. 1 speaks to that fact and his evidence has been accepted. There are no permissible grounds for taking a different view of the evidence adduced in the case. I therefore hold that the provisions of Section 145(2) have been strictly complied with and therefore the land-holder is bound to recognise the transfer.

4. I am also not satisfied that there are merits in the second point either. Section 147, the governing section says : '(1) All acts and proceedings commenced or had under this Act against the transferor or the co-sharers prior to

'(a) the giving of the notice under Sub-section (2) of Section 145 in so far as such acts and proceedings affect or purport to affect the land on which the arrear is due the crops growing thereon and the products gathered therefrom, shall as against the transferee or co-sharer be as valid & effectual as if such acts & proceedings had been commenced or had against the transferee or co-sharer himself, and he had been the defaulter.'

Under this Section all acts and proceedings against the original pattadar prior to the requisite notice will be binding on the purchaser. It is argued that as a corollary to this section, the sale subsequent to the initiation of the proceedings will be binding on him and it is not necessary to implead him as a party even though he has complied with the provisions of Section 145(2). The section speaks of 'all acts and proceedings'. Though the execution application was filed prior to the sale, it cannot be said that the act of sale took place or proceedings in respect of that sale were initiated prior to the issue of the aforesaid notice. In -- Veeramma v. Ramanna', I.L.R. (1946) Mad 846 Leach C.J. and Lakshmana Rao J. had occasion to resolve the conflict between two judgments of Single Judges one that of Venkataramana Rao J. and the other of Wadsworth J. The learned Judges agreed with the view expressed by Venkataramana Rao J. in preference to that of Wadsworth J.

There the facts were the land-holder having had notice under Section 145(2) of the Act of the transfer of a portion of a holding belonging to a pattadar, brought the holding to sale in execution of a rent decree passed against the pattadar under Section 77 of the Act without giving notice of the execution proceedings to the transferee. The learned Judges held that the sale was void as under Section 147 (1) such notice was necessary. It is true, as pointed out by learned counsel for the appellant, that on the facts of that case, the transfer of the holding was effected prior to the filing of the execution application. But a perusal of the judgment discloses that nothing turned upon that circumstances. The ratio decidendi of the decision is found at page 852. The learned Judges observed : 'It is quite a different matter to say that no notice shall be given to a transferee when there has been a rent suit and the landholder is proceeding in execution of the decree obtained by him therein. Section 145 (2) read with Section 147 (1) makes it quite clear that notice is necessary. Where notice is required and is not given the transferee cannot be affected by anything done behind his back. If the property is sold in such circumstances, the sale is invalid.'

In support of their conclusion the learned Judges relied on a decision of a Full Bench in -- 'Kanchamalai Pathar v. Shahaji Rajasahib' 59 Mad. 461 where the learned Judges held that a sale without issuing notice under Order 21, Rule 22, C. P. C. to the legal representative of the judgment-debtor was void.

Venkataramana Rao J. in -- 'Subbarayulu v. Arunachala Nadar', 70 M. L. J 576 expressed his view in the following terms: 'Thus it will be seen that once the transfer is notified to the landholder, the transferee is entitled to be impleaded in any fresh proceeding initiated after such notification though such proceeding be in connection with any decree or execution pending against the transferor before the date of notification or recognition.'

It is again true, as pointed out by the learned counsel, that in that case the transfer was effected prior to the filing of the execution application. But the above remarks clearly indicate that that fact would not make any difference in the legal situation for though the execution was started earlier, the proceedings in respect of the sale would be void as no notice of that sale was given to the transferee who was legally recognised by the landholder.

5. Even on principle the contention of the learned counsel does not appear to be sound. The Madras Estates Land Act does not say that a transfer of a holding subsequent to the filing of an execution application against the original pattadar can be ignored or cannot be recognised by the landholder. Section 145 (2) will equally apply to a transferee prior to the filing of the application and to a transferee subsequent to that date. Once the recognition is made, the transferee will become the owner for all the purposes of the Act and thereafter the landholder can look to the purchaser only for effectuating his rights. A sale held without issuing notice to the owner of the property is against the principles of natural justice.

6. For all the aforesaid reasons, I agree with the courts below that the sale held without giving the requisite notice to the transferee is void. The second appeal fails and is dismissed with costs.

7. No leave.


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