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Sevayi Ammal Vs. M. Somasundaram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1970)2MLJ77
AppellantSevayi Ammal
RespondentM. Somasundaram
Cases ReferredKoduru Vengu Reddy v. Magundu Vengu Reddy
Excerpt:
- - thus, the defendant has purchased only an undivided 1/4th share by exhibit b-1. it is well-settled that the purchaser of a co-parcener's undivided interest in a joint family property, is not entitled to possession of what he has purchased, and his only right is a mere equity to sue for partition and ask for allotment to him, that which on partition might be found to fall to the share of the alienating co-parcener'.vide manikayala rao v. the very object of the appointment of the receiver is to safeguard the interests of all the members of the family and to liquidate the debts in the best manner possible. the general rule is well settled that the property in the hands of a receiver is exempt from judicial process except to the extent permitted by the appointing court......to him to agitate the matter further. thus, the defendant has purchased only an undivided 1/4th share by exhibit b-1. ' it is well-settled that the purchaser of a co-parcener's undivided interest in a joint family property, is not entitled to possession of what he has purchased, and his only right is a mere equity to sue for partition and ask for allotment to him, that which on partition might be found to fall to the share of the alienating co-parcener'. vide manikayala rao v. narasimhaswamy : [1966]1scr628 . thus, the only right which the defendant has is only to sue for partition and not to claim any specific item.5. the receiver had sold this property, as per the directions of the court. the sale is for payment of the land revenue, and it is for a purpose binding upon the family.....
Judgment:

B.S. Somasundaram, J.

1. The Athankudi Udayars' Estate in Ramanathapuram District, which consisted of many villages, was owned by four branches. One member in one such branch was adjudged an insolvent. The Official Receiver in whom his share vested, filed O.S. No. 70 of 1938 in the Sub-Court, Devakottai, for administration. The members of the other three branches were parties to this suit. Preliminary nary decree for partition was passed and the properties were under the management of one Vasudeva Iyengar, an advocate, who was appointed as Receiver by the Court.

2. There was arrear of land revenue to the tune of Rs. 18,000, and for this S. No. 54/7 and some other items which belonged to this estate, were sold on 4th September, 1961 under the Revenue Recovery Act. One of the defendants in O.S. No. 70 of 1938, viz., defendant No. 15 offered to deposit Rs. 20,000 for setting aside that sale. Sevayi Ammal the present plaintiff, who was defendant No. 31 in that suit, tendered Rs. 21,500. This was accepted and the sale was set aside on payment of Rs. 18,000. On the directions of the Court, the Receiver executed the sale deed Exhibit A-5 on 19th May, 1962 to Sevayi.

3. Defendants 1 to 5 in O.S. No. 70 of 1938 owed certain amounts to one Lakshmi Achi. The latter filed a suit in O.S. No. 42 of 1946 in the Sub-Court, Devakottai, and obtained a decree. She brought for sale S. No. 54/7 and in the sale held on 2nd January, 1961, Somasundaram, the present defendant, purchased it. This sale was confirmed on 9th February, 1961, and Exhibit B-1, the sale certificate, was issued to him. He filed I.A. No. 433 of 1961 in the Sub-Court, Devakottai, for deleting this item of property, from the conveyance which was directed to be executed by the Receiver in favour of the plaintiff. He contended that the sale in his favour was earlier and that it alone should prevail. His application was dismissed on the and of April, 1962 (Vide Exhibit A-3). Later, he obtained possession of the property on 25th July, 1962 as per the orders in E.A. No. 398 of 1962 in E.P. No. 168 of 1958, in O.S. No. 42 of 1946. Thereupon, the plaintiff filed E.A. No. 487 of 1962 for re-delivery, but her application was dismissed on 12th December, 1963. She then filed O.S. No. 312 of 1963 in the Court of the District Munsif, Devakottai for setting aside the above summary order and for possession of this property with profits, past and future. The defendant contended that this property belonged exclusively to defendants 1 to 5 in O.S. No. 70 of 1938, that they never vested in the Receivers appointed in that suit, that as per Exhibit B-1 he had become entitled to the property much prior to the execution of the sale deed by the Receiver to the plaintiff, that the Receivers or the plaintiff never had any possession and that there were no grounds for setting aside the order passed in E.A. No. 487 of 1962. The learned District Munsif upheld the title advanced by the plaintiff and decreed her suit. On appeal, the learned Subordinate Judge came to a contrary conclusion, set aside the decree and dismissed the suit. The plaintiff challenges the correctness of this decision.

4. Which of these two persons has title to the property, will be the only question for determination in this appeal, exhibit B-1 sale deed in favour of the defendant is prior to the sale under Exhibit A-5 in favour of the plaintiff. But, it is pendente lite, because the suit O.S. 70 of 1938 was then pending. Further, the evidence also establishes that the defendant had purchased under Exhibit B-1 only the undivided share of defendants 1 to 5, thereby getting a mere equity to sue for partition. The Lower Appellate Court has committed an error in treating the sale under Exhibit B-1 as one relating to the entire S. No., as though it belonged exclusively to defendants 1 to 5 in O.S. No. 70 of 1938. These properties were included in this suit as joint properties available for partition, and in fact a preliminary decree for partition has been passed in respect of this item also in the year 1944. Therefore, the contention that defendants 1 to 5 owned these items exclusively, is untenable and is without any substance. Further, this has also been negatived in the earlier proceedings in I.A. No. 433 of 1961, wherein the defendant wanted a deletion of this item from the sale deed proposed to be executed by the Receiver to the plaintiff. This decision in Exhibit A-3 remains unchallenged and it is not now open to him to agitate the matter further. Thus, the defendant has purchased only an undivided 1/4th share by Exhibit B-1. ' It is well-settled that the purchaser of a co-parcener's undivided interest in a joint family property, is not entitled to possession of what he has purchased, and his only right is a mere equity to sue for partition and ask for allotment to him, that which on partition might be found to fall to the share of the alienating co-parcener'. Vide Manikayala Rao v. Narasimhaswamy : [1966]1SCR628 . Thus, the only right which the defendant has is only to sue for partition and not to claim any specific item.

5. The Receiver had sold this property, as per the directions of the Court. The sale is for payment of the land revenue, and it is for a purpose binding upon the family and the property. It is familiar knowledge that partition actions are generally protracted and take long time for the final decree proceedings to terminate. In the meanwhile, there will be numerous occasions when the property would have to be sold for discharging binding debts including the revenues due to the State. Unless some properties are sold and the debts are discharged, the persons who have got a paramount claim against the properties would institute separate proceedings side by side and bring the properties to sale.

6. It would result in confusion and the partition action itself would become futile and infructuous. Even though the filing of the suit results in a division in status the property will have to be preserved and managed as common property of the family. When necessity arises, the property may have to be sold. For that purpose, Courts as a rule appoint a Receiver in partition actions, as in suits for dissolution of partnership. That Receiver represents the entire estate and derives authority under the order of the Court, which is binding upon all the parties, and when he sells, he sells tangible items and not any undivided share therein. This is what is assured to the purchaser by the order of the Court.

Property in the possession of a Receiver is in the custody of the law and cannot be seized under a writ of attachment or execution. It is in the discretion of the Court to refuse to permit a sale of the property in his possession, under a judgment, though the levy was made before the Receiver was appointed. Vide Alderson on Receivers at page 229.

When a Receiver is appointed by a Court, he takes possession of the property on behalf of the Court. He looks after the property on behalf of all the parties to the suit. He represents all the parties for some purpose and his duty is that which is assigned to him by the Court. The very object of the appointment of the Receiver is to safeguard the interests of all the members of the family and to liquidate the debts in the best manner possible. The general rule is well settled that the property in the hands of a Receiver is exempt from judicial process except to the extent permitted by the appointing Court.

Vide Try v. Try 51 E.R. 163, Be Winton v. Mayor of Brecon 54 E.R. 342, and Lane v. Sterne 66 E.R. 559.

It has even been affirmed that though an attachment was levied on property before the appointment of a Receiver, it is within the sound discretion of the appointing Court to refuse to permit a sale of the property in the hands of a Receiver, and though subject to a pare mount judgment, cannot be sold under execution without leave of Court. A purchaser of such property at the execution sale buys at his peril and the sale may be cancelled upon an appropriate application to the executing Court.' Vide Mrs. Levina Ashton v. Madhabmoni Dasi 14 Cal.W.N. 560.

7. Koduru Vengu Reddy v. Magundu Vengu Reddy : AIR1927Mad471 , Jays down as follows:

In a suit for partition, the Court should provide for the payment of the father's debt which was incurred prior to the suit, out of the joint family estate of the father and his sons before directing partition of the estate by metes and bounds and the alienees of the sons' share are entitled to their vendor's share only subject to such liability. The purchaser of an undivided share of a Hindu co-parcener gets only an equity to enforce partition, and takes the share when partitioned subject to all the liabilities of it in the hands of the vendor. The father's power to sell the joint property for his just debt is subsisting and the Courts have to recognise in their decree the existence of such debts as are payable out of the joint estate and make the necessary provision for their liquidation before directing partition by metes and bounds.

8. The sale of any tangible item or an undivided share in any item cannot obviously prevail as against the sale by the Receiver. The purchase of an undivided coparcener's share is subject to the doctrine of lis pendens and subject to the risk of the Court itself sanctioning and authorising the Receiver to sell the very property for debts binding upon the family. From what has been mentioned above, it will be seen that the defendant, merely by reason of his priority, has no superior right, but only takes the risk and chance of the property purchased by him being available for division in the final decree proceedings, so that he can ask for the equity that the property purchased by him may be allotted to the alienating co-parcener. But, if before that stage reaches the property is authorised to be sold, that sale only will prevail. Any right created in the meanwhile either by private sale or by Court auction at the instance of or against an individual member of the family, will avail nothing as against the purchaser from the Receiver. This crucial aspect has been overlooked by the lower appellate Court. It follows that the sale in favour of the defendant cannot prevail as against the sale by the Receiver.

9. The learned Counsel appearing for the respondent contends that equity should be worked out in the final decree that might be passed in O.S. No. 70 of 1938. But, so far as this property is concerned, it should be taken as a property which is not available for partition and therefore there could be no question of enforcing any equity against a property which is not thus available.

10. Thus, the defendant has acquired only an equity to sue for partition. But, so far as the plaintiff is concerned, she has valid title under Exhibit A-5 which is a sale by the Receiver for purposes binding upon the family. The plaintiff is entitled to possession on the basis of her title. The lower appellate Court erred in setting aside the decree passed by the learned District Munsif.

11. The decree passed by the lower appellate Court is set aside and that of the trial Court is restored. The second appeal is allowed with costs throughout. No leave.


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