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Japagnanam (L.R.'s of the deceased Devasahayam Nadar Savarimuthu Nadar) and Ors. Vs. Poothanathan Nadar Samuel and Ors. (19.11.1965 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1967)2MLJ243
AppellantJapagnanam (L.R.'s of the deceased Devasahayam Nadar Savarimuthu Nadar) and Ors.
RespondentPoothanathan Nadar Samuel and Ors.
Cases ReferredRaja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer
Excerpt:
.....vitiated by the failure of the officer to affix his seal. sections 9 and 10 provided the penalty for the failure of a party to appear and to put in written statement. under these sections the party officer was empowered to declare a party, who failed to appear and put in his written statement as ex parte. but section 10 provided penalty on all interested persons, who failed to appear or put in written statements. when any person having an interest in the oodukoor holding failed to appear or put in any written statement within one month after service of notice in the manner referred to under section 8, the party officer was authorised to order that such holding shall be treated as a holding held on joint patta by the several shareholders. the result of the various sections is that, if..........properties from the defendants.2. the defendants contended that they were the jenmis of the suit properties and that padmanabha pillai madhavan pillai and ors. sold the plaint properties to one janaki pillai and another, and the defendants obtained redemption of the properties under the decree in original suit no. 1371 of 1103. the defendants further contended that the sale deeds in favour of the plaintiffs were invalid.3. the trial court found that the plaintiff had purchased one-fourth share from padmanabha pillai madhavan pillai's branch and was competent to redeem a schedule items from defendants 1 to 9 and decreed the suit. during the trial an attempt was made by the defendants to produce oodukoor awards regarding the properties but the trial court declined to receive them,.....
Judgment:

P.S. Kailasam, J.

1. The legal representatives of the plaintiff are the appellants The suit was filed for redemption of plaint A and B Schedule properties. In this appeal we are not concerned with B Schedule properties. The plaint A Schedule properties originally belonged to one Padmanabha Pillai Madavan Pillai of Vadavankara house. He mortgaged the plaint A Schedule properties to the father of defendants, 1 to 3 and the grandfather of defendants 4 to 9. The plaintiff obtained a sub-mortgage of the properties on 21-1-1091 and was in enjoyment thereafter Padmanabha Pillai Madhavan Pillai executed an melotti and kuzhikanam deed to the plaintiff under Exhibit A-3 on 5-9-1097 directing the plaintiff to redeem the mortgage of the year 1095 executed by the mortgagor in favour of defendants 1 to 3. On 12-3-1099 Padmanabha Pillai Madhavan Pillai executed a melotti and kuzhikkanam deed to defendants 1 to 3, the father of defendants 4 and 5 and the father of defendants 6 to 9, directing them to redeem the mortgage in respect of plaint A Schedule properties. There was a partition in the family of Padmanabha Pillai Madhavan Pillai under Exhibit A-5, dated 20-4-1101 by which the properties mentioned in A to F Schedules were divided. One-eighth share of the properties was allotted to E Schedule holders, Kali Lakshmi and her children. Another one-eighth share was allotted to F Schedule holders, Gowri Pillai and her children. Under Exhibit A-6, dated 15-7-1104 E Schedule holders partitioned their properties and Chellappan Pillai became entitled to E Schedule properties. The plaintiff purchased one-eighth share of Chellappan Pillai under Exhibit A-7, dated 27-1-1117. He also purchased one-eighth share from F Schedule holders under Exhibit A-8, dated 2-12-1117, and thereby became the one-fourth owner of the rights under Exhibit A-4. The suit was filed for redemption of the mortgage properties from the defendants.

2. The defendants contended that they were the jenmis of the suit properties and that Padmanabha Pillai Madhavan Pillai and Ors. sold the plaint properties to one Janaki Pillai and another, and the defendants obtained redemption of the properties under the decree in Original Suit No. 1371 of 1103. The defendants further contended that the sale deeds in favour of the plaintiffs were invalid.

3. The trial Court found that the plaintiff had purchased one-fourth share from Padmanabha Pillai Madhavan Pillai's branch and was competent to redeem A schedule items from defendants 1 to 9 and decreed the suit. During the trial an attempt was made by the defendants to produce oodukoor awards regarding the properties but the trial Court declined to receive them, as the applications were belated.

4. The second defendant preferred an appeal to the Subordinate Judge of Padmanabhapuram. He filed Interlocutory Application Nos. 723 and 726 of 1960 for reception of oodukoor awards as additional evidence. The Subordinate Judge received the documents as additional evidence and remanded the suit for fresh disposal after giving an opportunity to the defendants to prove the awards.

5. After remand, the trial Court accepted the plaintiff's claim over the plaint properties and found that the plaintiff was entitled to redeem the properties and that the defendants could not dispute the title of the plaintiff. The trial Court also found that the defendants had not acquired the jenmom rights and that the plaintiff's right to redeem subsisted. But the trial Court found that the oodukoor award was binding on the plaintiff and as the plaintiff had failed to prefer a civil suit within one year from the date of the award, the award had become final. The plaintiff preferred an appeal to the Subordinate Judge. The Subordinate Judge confirmed all the findings of the trial Court and dismissed the suit. The right of the plaintiff to one-fourth share in A Schedule properties and his right to redeem the properties are admitted in this appeal. Mr. T.R. Ramachandran, learned Counsel for the appellants-plaintiffs, submitted that the oodukoor award is not binding on the plaintiff and that in any event the Courts below were in error in holding that the suit was not within time.

6. Exhibit B-35 is the certified copy of the oodukoor award and Exhibit B-36 is the plan appended to the award. Exhibits B-35 and B-36 related to item 4 of A Schedule. The award was passed on 6th July, 1955. By the award the plaintiff is not given any share in the equity of redemption. Exhibit B-14 is the copy of the award and Exhibits B-25, B-26 and B-27 are certified copies of the plan proposed by oodukoor office relating to items 2 and 3 of A Schedule. The award was passed on 19th May, 1946. It is submitted that the present suit was filed more than one year after the date of the award.

7. Mr. T.R. Ramachandran, learned Counsel for the appellant, submitted that the oodukur award is not binding on the plaintiff, as he was not a party to the oodukoor proceedings and that he had no notice of the proceedings at any stage. He contended that notice to the mortgagees of the oodukoor proceedings will be of no consequence and will not bind his interests. He contended that the finality of the award was only between the sharers, and the mortgagees in possession cannot deny the title of the sharers in spite of the award. He further questioned the validity of the award, as it is not sealed as required under Rule 27 of the Oodukoor Settlement Rules. Finally, he submitted that under Section 29 of the Travancore-Oodukoor Settlement Proclamation the suit was within time, as it was filed within one year of the knowledge of the plaintiff of the award.

8. The question as to the validity of the award due to the non-affixing of the seal to the award may be first dealt with. Section 24 of the proclamation provides that at the close of the settlement enquiry in respect of each oodukoor holding the Settlement officer shall pass ah award settling the holding among the various shareholders. Section 33 of the Travancore-Oodukoor Settlement Proclamation empowers the Government to make rules to carry out all or any of the purposes of the proclamation. It is further provided under this section that all rules published as required by this section shall on such publication have effect as it enacted by the proclamation. The rules, therefore, form part of the proclamation and have equal validity as the enactment itself, provided they are within the rule-making powers. Rule 27 of the Oodukoor Settlement Rules is as follows:

The award besides containing the signatures of the Settlement Officer shall also be affixed with his office seal.

The rule requires that the Settlement officer shall not only sign the award but shall also affix his office seal. It was contended by the learned Counsel for the appellant that the signing as well as sealing of the award are mandatory requirements and the failure to sign or seal would make the award inoperative and in effective. As the validity of the award was questioned, notice was ordered to the Government Pleader and he was heard on this question.

9. The effect of the failure to affix the seal may now be considered. If, for the very validity of the award the signing and sealing are necessary, the failure to sign or seal will make the award inoperative. But if signing and sealing are procedural requirements, the failure to sign and seal would not render the award in effctive. Section 24, which requires the Settlement officer to pass an award, does not require the signing or sealing. The essential duty of the officer is to pass the award settling the holding among various holders after giving particulars required under the section. Signing and sealing of the award are required under Rule 27. The validity of the rule is not questioned as being beyond the scope of the rule-making powers, as the rule only prescribes the mode of carrying out the purposes of the proclamation. It cannot also be disputed that the rule has equal validity as the proclamation, but the requirements of signing and sealing cannot be said to be a condition precedent before giving validity to the award. The award is complete as soon as it is made and there is nothing in the proclamation or in the rules which invalidates the award,, if it is not signed or sealed. In Gokal Chand Jagan Nath v. Nand Ram Das Atma Ram (1939) 1 M.L.J. 56 : L.R. 66 IndAp 12 : I.L.R.(1939) Lah. 56, the Judicial Committee had to consider the validity of a judgment of a Court, which was not signed. Referring to Order 41, Rule 31, Civil Procedure Code, which requires that the judgment shall be in writing and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein. Their Lordships observed at page 65 as follows:

The rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words... The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was... The defect is merely an irregularity.

10. Their Lordships also referred to Sections 99 and 108, Civil Procedure Code. Section 99 provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. This decision is cited with approval by the Supreme Court in Surendra Singh and Ors. v. The State of Uttar Pradesh : 1954CriLJ475 . It was contended that there was no provision in the Oodukoor Proclamation or Rules corresponding to Section 99 or Section 108, Civil Procedure Code, and, therefore, the detect could not be cured. The Proclamation or the Rules do not provide that, if the requirements are not complied with, the award will be a nullity, and, as stated by the Privy Council in Gokal Chand Jagan Nath v. Nand Ram Das Atma Ram L.R. 66 IndAp 12 : I.L.R.(1939) Lah. 56 : (1939) 1 M.L.J. 56. , so startling a result would need clear and precise words. It has been held by this Court in Dasaratha v. Ramaswamy (1955) 2 M.L.J. 693 : I.L.R. (1956) Mad. 749 and Johara Bibi v. Mohammed Sadak Thamby Marakayar : AIR1951Mad997 , that the failure of one of the arbitrators to sign the award as required under Section 14(1) of the Arbitration Act, 1940, does not affect the validity of the award. Section 14 of the Arbitration Act requires that, when the arbitrators have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof. Though Section 14(1) requires that the arbitrators shall sign, it has been held that the failure to sign will not affect the validity of the award. In English Law also, though the award is required to be written, signed and sealed, the failure to sign or seal will not have the effect of setting aside the award. Reference was also made to similar provisions in the Indian Registration Act. Section 60 of the Indian Registration Act requires that the registering officer shall endorse thereon a certificate containing the word registered and shall sign, seal and date the certificate, which shall be admissible for the purpose of proving the document as having been duly registered. Section 87 of the Registration Act provides that no act done by the registering officer in good faith shall be deemed invalid merely by reason of any defect in his appointment or procedure. Section 60 relates to the procedure on admitting to registration, and any defect in signing, sealing and endorsing the certificate would be a defect in procedure curable under Section 87. Mr. T.R. Ramachandran, learned Counsel for the appellant submitted that the decisions rendered under the Registration Act holding that the failure of the registering officer to sign and seal as required under Section 60 would not invalidate the document cannot be of much use in construing the validity of the award in question. I agree with the contention of the learned Counsel, for Section 87 specifically cures any defect in procedure. Relying on the decision of the Privy Council in Gokal Chand Jagan Nath v. Nand Ram Das Atma Ram : 1954CriLJ475 , I hold that the award is not vitiated by the failure of the officer to affix his seal.

11. It is admitted that the plaintiff was not a party to the oodukoor proceedings and no notice was given to him. There cannot be any doubt that notice to the mortgagees will not bind the plaintiff or in any way affect his rights. The questions raised by the learned Counsel will have to be determined on an examination of the various Sections of the Travancore-Oodukoor Settlement Proclamation. The Travancore-Oodukoor Settlement Proclamation of 1122 was made for the purpose of an early settlement of oodukoor holding, as the justification of the continuance of the oodukoor system ceased to exist and the continuance of that system became a great impediment to the agricultural progress and prosperity of the State. The object of the proclamation was to conduct a settlement of the oodukoor holdings. The Government was empowered to appoint settlement officers and party officers for the purpose of settling the claims relating to oodukoor holdings in the State and were empowered to exercise all such powers and perform all such duties as may be laid down in the proclamation and the Rules passed thereunder. Section 5 provided for preliminary notification for the oodukoor holdings in the Government Gazette, and Section 6 provided for notification by the Settlement officer for starting the settlement work in a taluk by publication in the Government Gazette specifying the taluk in which the settlement work was proposed to be started and calling upon all persons interested in the oodukoor holdings to appear and deliver to him a statement of their claim in respect of their oodukoor holdings. Section 7 authorised the preparation of a register of oodukoor holdings by the Settlement officer. Any person, who held a share in the oodukoor holding and whose name was not included in the register, was entitled to apply to the party officer for including the holding in the register. Section 8 provided that after the completion of the register under Section 7 the party officer shall give notice in the prescribed form to every oodukoor holder, whose name appeared in the register, requiring him to appear before the party officer and deliver a written statement. Sections 9 and 10 provided the penalty for the failure of a party to appear and to put in written statement. Under these Sections the party officer was empowered to declare a party, who failed to appear and put in his written statement as ex parte. The word party would refer to an oodukoor holder, whose name appeared in the register, as notice contemplated under Section 8 is only to an oodukoor holder, whose name appeared in the register. But Section 10 provided penalty on all interested persons, who failed to appear or put in written statements. When any person having an interest in the oodukoor holding failed to appear or put in any written statement within one month after service of notice in the manner referred to under Section 8, the party officer was authorised to order that such holding shall be treated as a holding held on joint patta by the several shareholders. By Section 6 the publication of the notice in the gazette is deemed to be sufficient notice to all persons interested. The term persons interested is defined as including all persons claiming any interest in or charge on an oodukoor holding. Thus, any person having interest is deemed to have had notice regarding the settlement proceedings. Any person having share is also given a right to move the officer for including his holding in the register under Section 7(2). Section 10 provides that, if any person interested in the oodukoor holding fails to appear, the officer may proceed with the settlement proceedings though notice under Section 8 is only for persons noted as oodukoor holders in the register. The result of the various Sections is that, if a person having any interest failed to get his holding included in the register under Section 7(2), he cannot claim that notice should be served on him, and that, if he failed to take action within the time specified, in Section 10, the officer can proceed with the settlement proceedings. Sections 11 and 12 enumerate the powers of the Settlement officer to settle the holding. The award of the Settlement officer is to be passed under Section 24 of the Act. The award, while settling the holding among the various shareholders, shall specify the extent and tenure of each sub-division in respect of lands for which tenures are retained, the name of the person to whom it is allotted, the encumbrance existing on each sub- division, the amount ordered to be paid by one shareholder to another in adjustment of the share value and such other particulars, regarding each sub-division as may be prescribed. Section 29 provides that the award passed by the Settlement officer shall be final and binding on all the shareholders and other persons interested in the holdings, unless it is cancelled or modified by the decree of a civil Court of competent jurisdiction in a suit instituted for the purpose within one year from the date of the award by any person interested in the holding. Section 29 is wide enough to make the award binding on other persons interested in the holding subject to getting the award modified in a suit instituted by them within one year from the date of the award, as the words persons interested include all persons claiming interest in or charge on an oodukoor holding. In this case we are concerned with persons interested in a share in the oodukoor holding and, therefore, the award is binding under Section 29. In this case we are not concerned with the person holding a mortgage right over the oodukoor holding. When any person interested fails to appear and put in a written statement as required under Section 10, the Settlement officer is entitled to proceed with his enquiry and pass an award as provided under Section 24, and this award is binding on all persons interested. The validity of the award, therefore, cannot be questioned by any person interested. But a remedy is provided to a person interested, in that he can have the award cancelled or modified by a suit instituted in a civil Court within a year from the date of the award.

12. The question is whether the suit should be filed within one year from the date of the award or from the date of knowledge of the award by the person interested. Rule 35 of the Oodukoor Settlement Rules provides that on passing of an award by the Settlement officer a notice in Form K shall be issued to all the parties in the case intimating the purport of the decision. So far as parties to the case are concerned the period will, therefore, run only from the date of receipt of the notice in Form K. So far as others are concerned, it should be noted that the proclamation or the rules do not provide for any publication of the award or constructive notice to all persons concerned. In the absence of any such provision deeming notice to all persons, interested persons can only be said to have notice from the date of their knowledge. The Supreme Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer : 1954CriLJ475 , dealing with the award by the Collector under the Land Acquisition Act held as follows at page 683:

The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the Party or is known by him either, actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words from the date of the Collector's award used in the proviso to Section 18 in a literal or mechanical way.

As already stated, there is no provision imputing constructive knowledge of the award to the person interested. Following the decision of the Supreme Court it has to be held that the words date of the award in Section 29 will have to be understood as the date when the award was communicated to the party or is known by him either actually or constructively.

13. In this case there is nothing to show that the plaintiff was aware of the passing of the award before he filed the suit, for the award itself was brought to the notice of the Court only at a late stage of the proceeding by the defendant. The suit has, therefore, to be held to be within time.

14. As already stated, all other issues have been found in favour of the plaintiff, and, as the suit is found to have been filed within time, the appeal will have to be allowed and the plaintiff's suit decreed with costs throughout.

15. Leave refused.


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