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Chandrappa Govinda Mudali Vs. Govindaswami Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1976)2MLJ365
AppellantChandrappa Govinda Mudali
RespondentGovindaswami Mudaliar
Cases ReferredKhiarajmal v. Daim I.L.R.
Excerpt:
- .....is the appellant the plaintiff laid the suit for declaration of his absolute title to the suit property measuring 2 acres out of 3.17 acres comprised in survey no. 164 of pettai kandigai village, tiruttani taluk, or for his possessory title to the above property and for a permanent injunction against the defendant or in the alternative for possession of the property. according to the plaintiff the suit property belonged to one lingappa, who was in possession and enjoyment thereof. on 12th october, 1956, lingappa sold the property to one kuttiappa mudali for a sum of rs. 300 with an obligation to reconvey the property on receipt of rs. 300 within five years from the date of the sale-deed. thus, the right of reconveyance of the property was available till 11th october, 1961. as.....
Judgment:

V. Sethuraman, J.

1. The defendant is the Appellant The plaintiff laid the suit for declaration of his absolute title to the suit property measuring 2 acres out of 3.17 acres comprised in survey No. 164 of Pettai Kandigai Village, Tiruttani Taluk, or for his possessory title to the above property and for a permanent injunction against the defendant or in the alternative for possession of the property. According to the plaintiff the suit property belonged to one Lingappa, who was in possession and enjoyment thereof. On 12th October, 1956, Lingappa sold the property to one Kuttiappa Mudali for a sum of Rs. 300 with an obligation to reconvey the property on receipt of Rs. 300 within five years from the date of the sale-deed. Thus, the right of reconveyance of the property was available till 11th October, 1961. As Lingappa had no money to get back?he property, the plaintiff paid Lingappa the sum of Rs. 300 so as to enable him to take back the said property. Lingappa got back the property. He had agreed to sell the said property for Rs. 3,000 to the plaintiff. The sum of Rs. 3,000 was paid as follows: Rs. 300 in the manner mentioned above, Rs. 1,600 went towards discharge of certain debts and Rs. 1,100 was payable before the Sub-Registrar. The plaintiff could not make The balance of the amount of Rs. 1,100 and, therefore, he could not S the conveyance till 24th August, 1962 When he paid the balance of the amount of Rs. 1,100 a sale-deed was executed in his favour on that date and it was registered. According to the plaintiff he had thus become the full owner of the suit property. On 6th February, 1965 the defendant is said to have come to the suit property with a number of coolies and attempted to harvest the crops. According to the plaintiff, the defendant thus disturbed his possession and, therefore, he came forward with the present suit.

2. The defendant resisted the above claim of the plaintiff on the ground that it is false to say that Kuttiappa Mudali was put in possession of the suit property by virtue of the sale-deed in his favour, dated 12th October, 1956, and that the suit land was always in the possession and enjoyment of Lingappa Chetty till 18th January, 1965, when the defendant took possession of the same with standing crops therein, through Court. According to him there was a decree against Lingappa in O.S. No. 117 of i960 and the property here was brought to sale. The defendant purchased the said property in court-auction on 13th March, 1964 and he took delivery thereof on 18th January, 1965. The defendant submitted that the property had already been attached on 23rd October, 1960 and that the sale-deed in favour of the plaintiff was void and inoperative. As no claim had been preferred by anybody then or after the property was sold in court-auction, it was contended that the plaintiff could no longer set up any title and that he was not entitled to the suit property. The defendant prayed, therefore, that the suit may be dismissed with costs.

3. The learned District Munsif held that the plaintiff was not entitled to the declaration and the permanent injunction prayed for by him, that the sale-deed in favour of the plaintiff was not true and valid and supported by consideration and that the suit was not maintainable. Aggrieved by that decision the plaintiff preferred an appeal to the learned Subordinate Judge of Chingleput. The appeal was allowed. There was a second appeal viz., S.A. No. 95 of 1969 in which the High Court remitted the matter to the lower Appellate Court and on the second occasion the learned Subordinate Judge again allowed the appeal. He, held that the plaintiff was entitled to the declaration and the injunction. He was convinced that the plaintiff alone was in possession of the suit land on the date of the suit and as such he was entitled to the injunction as prayed for.

4. In the present appeal two points are raised for consideration. The first is whether as a result of the purchase of the suit property in court-auction by the defendant, he had become the complete owner thereof. The court-auction in execution of the decree against Lingappa, it may be remembered, was in pursuance of an earlier attachment on 23rd October, 1960. The attachment would be operative if it was Lingappa's property on that date. But the property had become Lingappa's only on 24th October, 1960. On the date on which the attachment was made Lingappa had no attachable interest in the property. Though he had entered into an agreement for conveyance of the property, he had not actually taken over a conveyance so as to become the owner. The attachment was not of the interest of Lingappa in the said property. It is true that the saleable interest of Lingappa could have been attached, but it was not. Therefore, on the facts herein, on the date of the attachment, since Lingappa had no interest in the property, the attachment is invalid. The subsequent sale by Court does not confer any title on the defendant. The fact that Lingappa got the property later does not in any manner help the appellant herein, because unless the attachment was made of a property belonging to Lingappa and sale thereof, there could have been no transfer to the defendant so that the purchaser can derive title thereby.

5. The next question that was argued was whether the sale by court-auction could be treated as nullity by the plaintiff. In other words, the point raised was whether the plaintiff, not having taken proper proceedings for the purpose of setting aside the court-sale, is not bound by the Court proceedings. In this connection, my attention was drawn to a decision of the Privy Council in Khiarajmal v. Daim I.L.R. (1905) Cal. 296 : 32 I.A. 23. In that case the lands in suit were held by the plaintiffs under leases granted by Government for terms of seven years, and renewed from time to time. To a suit brought in 1897 for redemption of the lands which had been mortgaged in 18 78 by usufructuary mortgages, the defence was that the defendants were not mortgagees of the property but had purchased it at sales in execution of decree in 1880-81 which could not be set aside, and that the suit was barred by lapse of time. The Privy Council held that though the sales could not now be set aside or treated as void by reason of mere irregularities of procedure in obtaining the decrees or in execution of them, yet the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record and that as against such persons the decrees or sales under them were void without any proceedings to set them aside. Applying the clear principle laid down by the Privy Council, the Court had no jurisdiction to sell a third party's property. There is no need on the facts herein for the plaintiff herein for setting aside the court-auction-sale. It is not necessary for him to intervene in the execution proceedings, which led to the court-auction-sale and make a claim or take other proceedings under Order 21 of the C.P. Code. He could collaterally challenge the sale as a nullity which he has done before. As the person whose property was sought to be attached, had no saleable interest in the property, there ii no question of the proceedings giving any benefit to the defendant. In these circumstances, there is no merit in the appeal. The second appeal is dismissed, with costs. No leave.


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