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E. Venkatarama Iyer Vs. A. Elumalai Naicker and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad442; 72Ind.Cas.464
AppellantE. Venkatarama Iyer
RespondentA. Elumalai Naicker and anr.
Cases ReferredRaja Thakur Barmha v. Jiban Ram Marwari
Excerpt:
execution sale - identification and sale of wrong property, effect of-mis-description of property sold, effect of--auction-purchaser, position of. - - if, on the other hand, the land is clearly identified, but wrongly described, the misdescription is to be treated as an irregularity and the sale at the auction stands good......suit, the first defendant, the appellant, bought from the judgment-debtor, his brother-in-law, the land described as no. 55 punja. in this village the numbers used for description of lands run consecutively irrespective of whether the land is punja or nanja. there is no other no. 55 in this village. the land is in fact punja and not nanja. in my judgment the word 'nanja' used in the mortgage and in the decree and in the documents relating to the auction is merely an inaccurate description of the land properly described as no. 55 and thus identified and in my judgment that land was mortgaged and was the subject of the decree, and was the land that was sold. if the description of the land given is such that it identifies the land, for instance, if the description, used would apply to some.....
Judgment:

Walter Schwabe, C.J.

1. The plaintiff claims a certain land which he says he purchased at a Court-auction. The land purchased was mortgaged by the judgment-debtor, the second defendant, to the decree-holder, who obtained a mortgage-decree and brought the land to Court-auction. The land was described probably in the mortgage as 'Nanja' 55 though it is not quite clear that the word 'Nanja' in the mortgage itself necessarily applied to the number 55 : but it was certainly so described in the decree, in the notice of sale and in the certificate of sale. Before the sale and after the suit, the first defendant, the appellant, bought from the judgment-debtor, his brother-in-law, the land described as No. 55 Punja. In this village the numbers used for description of lands run consecutively irrespective of whether the land is Punja or Nanja. There is no other No. 55 in this village. The land is in fact Punja and not Nanja. In my judgment the word 'Nanja' used in the mortgage and in the decree and in the documents relating to the auction is merely an inaccurate description of the land properly described as No. 55 and thus identified and in my judgment that land was mortgaged and was the subject of the decree, and was the land that was sold. If the description of the land given is such that it identifies the land, for instance, if the description, used would apply to some other land than that which it was intended to sell then, according to the judgment of the Privy Council in Raja Thakur Barmha v. Jiban Ram Marwari 18 C.W.N. 313 : 15 M.L.T. 137 : 12 A.L.J. 156 : 19 C.L.J. 161 : 26 M.L.J. 89 : 16 Bom. L.R. 156 : 41 I.A. 38 (P.C.), the purchaser at Court-auction can get no other land than that so identified. If, on the other hand, the land is clearly identified, but wrongly described, the misdescription is to be treated as an irregularity and the sale at the auction stands good. As this land was the subject for the mortgage suit, although there was an error in the description of it, in my judgment, Section 52 of the Transfer of Property Act applies, and during the pendency of that suit, the first defendant would get no title to it. Further, it was ordered in this case that the description 'Nanja' should be altered into 'Punja' and the various documents from the mortgage-deed onwards be rectified accordingly. It was argued that, under the Specific Relief Act, rectification could not be ordered where rights of third parties intervene. It is said that the purchase by the first defendant was a bona fide purchase for value without notice and the rectification cannot be made so as to affect the right which he has acquired. The answer given on this point by the Subordinate Judge is that the first defendant was not a bona fide purchaser for value. That, I think, is a question of fact, and there being evidence to support it, it is not open to this Court on second appeal to re-consider it, but I think it right to say that the fact of relationship of the first and the second defendants, the suspicious circumstances as to the consideration and the fact that the first defendant never even asked to see the title-deed before purchasing the land amply warrant the Subordinate Judge and the District Munsif in arriving at the conclusion which they did on this point. In view of what I have said about the application of Section 52 of the Transfer of Property Act, this point does not arise.

2. This appeal must be dismissed.

Wallace, J.

3. I agree.


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