Full Judgment Text
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PETITIONER:
LUKA MATHAI (DEAD) BY LEGAL REPRESENTATIVE
Vs.
RESPONDENT:
NEELAKANTA IYER SUBRAMONIA IYER
DATE OF JUDGMENT:
26/05/1970
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
RAY, A.N.
PALEKAR, D.G.
CITATION:
1972 AIR 383 1972 SCR (1) 977
ACT:
Travancore Revenue Recovery Regulation 1 of 1068 M.E. s.
32(2)--Agricultural land hypothecated to government sold for
non-payment of loan--Wrong survey numbers mentioned in
proclamation of sale--Sale not vitiated it identity, of
plots not in doubt--Misdescription whether resulted in low
price--Sale is vitiated when plots other than those hypothe-
cated are sold along with those hypothecated.
HEADNOTE:
The appellant hypothecated certain agricultural lands to the
Travancore State Government against loans received by him.
On his failure to repay the loans the plots in question were
notified for sale after notice to the appellant. In the
proclamation of sale the number of plot no. 545/32A-1 was
wrongly mentioned as 545/32-11/1 and the number of Plot of
plot no. 537/3 was wrongly mentioned as 532/3. Certain
other plots held by the appellant although not hypothecated
to the Government were also sold. The appellant presented a
petition to the Division Peshkar challenging the aforesaid
revenue sale without success. The appellant then filed a
suit for setting aside the sale and redemption of the
mortgage. The trial court partly decreed the suit holding
that the sale was a nullity. The High Court, however,
reversed the judgment and dismissed the suit. With
certificate appeal was filed in this Court. The appellant
contended : (i) that the revenue sale was a nullity because
in effect and substance no proclamation of sale was issued
in as much as wrong revenue numbers were mentioned therein.
(ii) that on account of wrong numbers being mentioned
property worth. Rs.1.00,000 had been sold for a meagre sum
of Rs.4,510; (iii) that under the Travancore Recovery
Regulation the property in question could not be brought to
sale and (iv) that the Government had no authority to attach
and sell plots which were never hypothecated -and thereby
the whole sale was vitiated.
HELD : (i) The ;ale of the survey numbers which were
hypothecated to the Government was not vitiated by the mere
fact that the survey numbers relating thereto were wrongly
mentioned. It was only a case of misdescription and their
identity was never in doubt. [634 C-E]
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Sheodhvan Sineh v. Muhammat Kuer [1962] 2 S.C.R. 753 and
Thakur Barhma v. Jiban Ram Marwarl (1913) L.R. 41 I.A. 38,
applied.
(ii) There was no material to show that the property was
ever valued at more than Rs.30,000. Considering the fact
that the plots in question were mortgaged the price for
which they were sold was not low. [634 H]
(iii) The point that the dues under the bond could not be
recovered as arrears of land revenue was not raised at any
earlier stage. The court could not set aside the sale on
this ground because it it had been raised earlier the
Government may well have relied on the power of sale Riven
under the bond. The fact that the sale took place under the
machinery provided by the Revenue Recovery Regulation and
not under any ad hoc machinery set up by the Government
could not vitiate, the, sale. [635 G]
630
(iv) However, the appeal had to be allowed and sale set
aside on the ground that the bonds did not give power to the
Government to sell the properties other than those mentioned
in the bonds. All the properties-those hypothecated and
those not hypothecated--were sold in one lot. This vitiated
the sale and the Court had no option but to declare the sale
of all the properties void. [636 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 542 of 1967.
Appeal from the judgment and decree dated January 24, 1964
of the Kerala High Court in Appeal Suit No. 368 of 1959.
M. C. Chagla, Ganpat Rai and Manuel T. Paikeday, for the
appellant.
A. R. Somanatha Iyer, N. Narayanaswami, K. N. Bhat and M. R.
K. Pillai, for the respondent.
The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate granted by the High
Court of Kerala is directed against its judgment and decree
reversing the judgment and decree of the Trial Court and
dismissing the suit of the original plaintiff, appellant
before us. The relevant facts for determining the points
raised before us by Mr. Chagla. learned counsel for the
appellant, are -as follows.
On December 5, 193 1, the plaintiff executed a hypothecation
bond in favour of the Travancore Government in respect of a
loan of Rs. 6,000/-. On December 12, 1931, another bond was
executed in respect of a further loan of Rs. 4,400/-. On
May 28, 1932, the plaintiff executed an-other hypothecation
bond in favour of the father of Neelakanta lyer Subramonia
Iyer, respondent before us. In the Government gazettes
dated February 21 1939, and April 25, 1939, under paragraph
6 reference is made to the arrears of Rs. 4,193 chs. 19 ca.
9 plus interest under the special loan to be paid by Luka
Mathai of Pallithanathu, Kottayam Taluk, and the sale of 97
acres of nilam comprised in survey 545/32-11/1 and 14 cents
of purayidam comprised in survey 532/3.
A notice was issued to the plaintiff in March or April, 1939
(27-8-1114 M.E.) that as he had to repay Rs. 4,193 chs. 19
ca. 9 under the special loan plus the executio costs and the
interest thereon "it is hereby made known that 107 acres 84
cents of properties belonging to you and comprised in survey
numbers 545 / 32-11/1, 481/3 , 481/4A, 481/4C etc. of
Pulinkunnu Pakuthy and which were attached will be sold in
auction on 27th Medam, 114." On May 10, 1939, the revenue
auction took place and the respondent-purchased the
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properties in dispute for Rs. 4,510/-.
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The plaintiff presented a petition (Ex. M) to the Division
Peshkar against the revenue sale. In this petition it was
stated as follows :
"I received notice stating that the sum will
be realised by auctioning the properties
comprised in Survey 545/32-11/1, 481/5,
481/4A, 481/4C of Pulinkunnu Pakuthy. Knowing
that the aforesaid property in Survey No.
545/32 A-1, which belongs to me and which I
had given as security to Government was going
to be sold in auction on 27th Medam la
st, many
persons had come forward to bid the same in
auction. But the. properties that were sold
in auction are the properties comprised in
Survey numbers 545/32 11/2, 481/5, 481/4A and
481/4C."
He further stated that "since the auction was conducted in
this manner the properties worth about Rs. 30,000/- were
sold in this auction for a paltry sum of Rs. 4,500/- odd."
The sale was, however, confirmed by the Division Peshkar.
The sale certificate (sanad) was issued to the respondent on
November 13, 1939. The sale certificate was executed and
issued under s. 34 of Regulation I of 1068, in respect of
the properties including the properties in dispute, namely,
97 acres of nilam comprised in Survey No. 545/32-A/1 and 14
cents of purayidam comprised in Survey No. 537/3.
On August 5, 1941, partition suit (O.S. No. 102 of 11 16)
was instituted and judgment was delivered by the Trial Court
in this suit on September 29, 1952. Reference is made to
this judgment because basing itself on this judgment the
plea of res judicata was raised by the defendant in the High
Court.
The suit out of which the present appeal arises, namely,
original suit No. 492 of 1953, was filed for setting aside
the sale and redemption of the mortgage. The Trial Court
partly decreed the suit holding that the sale was a nullity.
The High Court, as stated earlier, has reversed this
judgment and dismissed the suit.
The learned counsel for the appellant raised- the following
points before us : (1) that the revenue sale was a nullity
because in effect and substance no proclamation of sale was
issued inasmuch as instead of mentioning the proper revenue
numbers of the land, namely, survey No. 545/32-A-1., survey
No. 545/32-II/1 was mentioned and in place of mentioning
survey No. 537/3 survey No.. 532/3 was mentioned; (2) that
the property valued at Rs. 1,00,000/- had been sold for a
meagre sum of Rs. 4,51O/-, (3) that under the Travancore
Revenue, Recovery Regulation this
632
property could not be brought to sale; and (4) that the
Government had no authority to attach and sell plaint A
schedule items 2 to 5 and B schedule items 1 and 3 to 8 and
C schedule items, which were not given as security under the
bonds; and if the Government had no authority then the sale
of all the properties is void.
Coming to the first point, there is no doubt that wrong
revenue numbers were mentioned in the notice dated May 5,
1939. In the proclamation issued under s, 32 of Regulation
1 of 1068 after. mentioning the amount of Rs. 4,193 ch. 19
c. 9 which was due the properties were described in the
schedule to the proclamation (ex. AB). In column 1 under
the heading (name in which the assignment is made :
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Thandapper and number) is mentioned "1861 Luka Mathai,
Pallithanathu Kainadi Muri, Neclamperur." Survey No. 545/32
is described as Nilam and tenure as Pandaravaka Pattom. The
area is 97 acres and taxes are also mentioned. There is a
dispute whether against the survey No. 545/,32 the letter
’A/1’ existed or ’11/1’ as in the original proclamation, but
there cannot be any dispute that otherwise the description
of the property of 97 acres is correct and complete.
Regarding survey No. 537/3 again the tenure is described as
Pandara Pattom, area 14 cents and the local taxes are also
given.
In his evidence the plaintiff stated
"I was aware that the property mortgaged by me
was the property comprised in S. No.
545/32/Al. It is being called as 97 acres.
That which was mortgaged was also 97 acres.
In addition to All have no other properties in
S. No. 545/32."
He was asked : Does any person other than you have nilam
which is 97 acres in extent? He answered : "No. There are
no other persons having 97 acres of nilam in the other
(numbers also."
The High Court referred to some earlier proceedings for
recovery of the defaulted amounts, due to the Government,
which took place in III 0 M.E. and 1 1 12 M.E. and found
that in those cases the correct survey numbers had been
given. But as far as the proclamation in question relevant
to the present sale are concerned, the,High Court found
"But the proclamation which have been produced
as Exts. AB, AD & AE all show some correction
by over-writing on the character ’A’ in S. No.
545732/ A/ 1 and the figure ’7’ in S. No.
537/3. The Proclamation that was published in
the Gazette on 12-9-1114 gives the Survey
Numbers distinctly as 545/32/11/1
633
and 532/3. Likewise in the sale notice Ext.
J. in the copy that is served on the plaintiff
the S. No. is shown as 545/32/11/1 while in
the original it is 545/32/ A/1, but one cannot
be sure whether A has been corrected or not."
The High Court however came to the conclusion that the
description of the property _in the relevant records was
sufficient to identify the property correctly and to give
the requisite information to the intending buyers. The High
Court held that Ext. M, the relevant portion of which we
have extracted above, shows that the plaintiff had
categorically stated that many persons knew for certain that
survey No. 545/32/A/1 which had been hypothecated to
Government was coming up for auction sale on May 10, 1939,
and that the mistakes in the survey sub-division numbers
even if they existed at the material time had not misled
anybody and everybody concerned knew that the property
proceeded against was really survey No. 545/32/A/1 and
537/3. The High Court further observed that it had not been
shown in the case that the mis-description of survey numbers
has caused any Teal prejudice to the plaintiff in the
revenue sale concerned. The High Court observed
"There is no case that in the piece of land
bearing survey No. 545/32 the plaintiff had
any other plot than that bearing
the sub-
division No. A/1 or that there is a piece of
land bearing the sub-division II/1 therein."
The High Court finally concluded
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"An error in the survey number of the property
involved in a proclamation of sale cannot be
held to be such a vital defect as to compel us
to hold the sale to be one ’without a
proclamation’ at all and to declare the sale
void on that score, especially in view of the
fact that, even according to the plaintiff,
nobody was misled by that error."
We agree with this finding of the High Court. We are
satisfied that on the material placed before us no other
finding could be arrived at.
The learned counsel referred to us a number of cages to show
that if there is no publication of proclamation then that
would vitiate the sale. The learned counsel for the
respondent referred us to the decision of this Court in
sheodhyan Singh v. Muhammat Kuer.(1) Relying on this case
the learned counsel says that it
(1) [1962] 2 S.C.R. 753.
634
was a case of misdescription and not a case of mistaken
identity. He further says that the valuation suggested by
the learned counsel is highly exaggerated ’because in his
plaint even the plaintiff had only said that the value was
Rs. 30,000/-. In that case the final decree for sale in a
mortgage suit and in the certificate for sale the number of
the property in dispute was given as No. 160 instead of No.
1060, which was the real number but the property was
otherwise fully described so that its identity could be
clearly established. This Court held that "as the khata
number, the area and the boundaries given in the final
decree and in the sale certificate tally with No. 1060, the
identity is clearly established and there has only been a
misdescription of the plot in the final decree as well as in
the sale certificate by the omission of one zero from the
’Plot number ." In another passage, referring to the
decision of the Privy Council in Thakur Barmha v. Jiban Ram
Marwari(1) Wanchoo, J., observed that "the effect of this
decision is that where there is no doubt as to the identity
and there is only misdescription that could be treated as a
mere irregularity."
It seems to us that it is clear from the details mentioned
in the proclamation, which we have mentioned above, that the
bidder, the owner and the auctioner had no doubt about the
identity of the property which was being sold. This was not
a case of a non-publication of the proclamation and.
therefore. the rulings relied on by the learned counsel for
the appellant have no application.
Under S. 32(2) of the Travancore Revenue Recovery Regulation
(Regulation 1) of 1068 what is required is that "previous to
the sale, the Tehsildar shall issue a notice specifying the
name of the defaulter, the position, tenure and extent of
land and the buildings therein; the amount of revenue
assessed on the land or upon its different sections; the
proportions of the Public Revenue due during the remainder
of the current Malabar year, and the time,, place and
conditions of the sale." In our opinion, the proclamation
satisfies the requirements of S. 32(2).
in view of the above conclusion it is not necessary to rely
on the point of res indicate made by the High Court.
Regarding the second point, there is no material to show
that the value of the property was anywhere more than Rs.
30,000/-. In view of the fact that the property had been
mortgaged to Government and to private parties, we are not
satisfied that the property was sold at a low price. The
Trial Court has found that no fraud has been proved.
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(1) (1913) L.R. 41 I.A. 38,
635
The third and fourth points arise out of the cross-
objections filed by the plaintiff-appellant before us. The
High Court disposed of the cross-Objections in the following
words
"The plaintiff has preferred a cross-objection
pleading that the revenue sale ought to have
been declared void with regard to the other
items of properties included in the plaint
schedule also. Admittedly they were the
subject-matter of the attachment and
proclamation which culminated in the revenue
sale. No defect in the proceedings except the
error in -the Survey Numbers discussed above,
to effect the validity of the revenue sale has
been brought to our notice. The cross-
objection has no merits and has only to be
dismissed."
It is not quite clear whether the third ground was
specifically taken in the cross-objections though ground No.
5 may perhaps cover it. Be that as it ’may, as the
questions of jurisdiction and law are involved we have to
deal with the point. Section 59 of the Travancore Revenue
Recovery Regulation (Regulation No. I of 1068) reads thus :
"59. All arrears of Public Revenue due to
Government other than land revenue,
all moneys due from any person to Government
which under a written agreement executed by
such person are recoverable as arrears of
Public or Land Revenue, and all specific
pecuniary penalties to.which such person
renders himself liable under such agreement,
and also all sums declared by any other
Regulation for the time being in force to be
recoverable as arrears of Public or Land
Revenue,
may be recovered under the provisions of this
Regulation."
The learned counsel for the plaintiff contends that there is
no written agreement which says that the moneys due under
the bond can be recovered as arrears of public or land
revenue. The learned counsel for the respondent has not
been able to point out any such agreement and the only point
he urges is that this point was new and should not be
allowed to be taken. No other regulation has been brought
to our notice which makes dues under this bond to be
recoverable as arrears of public or land revenue. But we
are unable to set aside the sale on this ground because if
the point had been taken at an early stage the Government
may well have relied on the power of sale given under the
bond. The fact that the sale took place under the machinery
provided by the Revenue Recovery Regulation and not under
any ad hoc machinery set up by the Government would not
vitiate, the sale,
636
But the fourth point raised by the learned counsel for the
plaintiff is fatal for the respondent. The bonds do not
give power to the Government to sell the properties other
than mentioned in the bond. The properties mentioned in
plaint, A schedule items 2 to 5, B schedule items I and 3 to
8 and C schedule items were not given as security under the
bond and the Government had no authority to sell them. It
is conceded on behalf of the respondent that all the
properties were sold in one lot. This, in our opinion,
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vitiates the whole sale and we have no option but to declare
that the sale of all the properties was void.
In the result the appeal is allowed and the judgment of the
High Court set aside and the decree passed by the Trial
Court modified as follows :
"For the reasons stated in this judgment it is
hereby declared that the proceedings such as
revenue sale, etc. in respect of all the
properties mentioned in the plaint schedules
A, B and C are void and are accordingly set
aside, that the plaintiff has the right to get
a release of the properties under the mortgage
deed dated 15th Edavam, 1107 including the
said properties; that the plaintiff do recover
the said properties from out of the possession
of the defendants ; and that the plaintiff do
realise from the defendants means profits as
determined by the Trial Court."
The parties will bear their own costs throughout.
G.C.
Appeal allowed.
637