Allowed

Luka Mathai (Dead) by Legal Representative v. Neelakanta Iyer Subramonia Iyer

Supreme Court26 May 19701970 INSC 138 · [1971] 1 S.C.R. 6291970 INSC 138

Case brief

AI extract

What is this about?

Agricultural lands hypothecated to the Travancore Government were sold by revenue auction with wrong survey numbers in the proclamation and along with non-hypothecated plots. The Supreme Court held misdescription did not vitiate sale where identity was certain, but selling non-hypothecated properties in one lot vitiated the whole sale.

What did the court decide?

High Court judgment set aside; Trial Court decree modified: revenue sale of all plaint schedule properties declared void and set aside; plaintiff entitled to release and possession of mortgaged proper

Luka Mathai (Dead) by Legal Representative versus… — Property and Title | Supreme Court (1971)

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629

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A LUKA MATHAI (DEAD) BY LEGAL REPRESENTATIVE

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NEELAKANTA IYERSUBRAMONIA IYER

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May 26, 1970

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[S. M. S1KR1 AND A. N. Rw. JJ.J

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Travancore Revenue Recovery Regulation I of 1068 M.E. s. 32(2)- Agricultural land hypothecated to f!OVzrnment sold for non-payment of loan-Wrong survey numbers mentioned in proclamation of sale-Sale not vitiated if identity of plots not in doubt-Misdescriplion whether resulted In low price-Sale is vitiated when plots other than tho.re hypothe- c cared art .1old along with those hypothecated. ·

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The appellant hypothecated certain agricultural lands to the Travancre State Government aainst loans re<eeived 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. 54S/32A-1 was wronglv mentioned as 545/32-11/l an.d the number of plot of plot no. 537/3 was wrongly mentioned as 532/3. Certain other plots D held by the acpellant although not hypothecated to the Government were al•o sold. Tho appellant presented a cetition to the Division Pesllkar challengin~ the aforesaid revenue sale without success. The acpellant thn filed a suit for setting aside the sale and redcmction of the mortne. The trial court partly decreed the suit holdin that the sale was a nullity, The Hi!!!h Court. however, reversed the iud,mteT\t and dismissed the uit. With certificate anneal was flied in this Court. The appella11t contended : (i} that the revenue oale wu a nullity because in effect and •ubstance E no proclamation of sate was issued in as much as wrong revenue numbers were mentiod therein, (ii) that on account of wron~. number. .being mentioned property worth. Rs. 1.00.000 had been sold for a mea~re sum of Rs. 4,510; (iii) that under the Travancore Recovery Regulati.on the propertv in question could not be brouqht 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.

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HELD : (i) The sale of the survey numbers which were hvoothecated to the Government was not vitiated by the mere fact that the survev numhers relatin~ thereto wPre wronl.!1v mentioned. Tt wali onlv a case of misdescription and their identity was never in doubt. [634 C-El

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Sheodhvan Sln~h v. Muhammat Kuer fl 962] 2 S.C.R. 753 and Thakur Barhma v. Jiban Ram Marwarl (1913) LR. 41 I.A. 38, applied.

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(ii) There was no material to show that the nrooertv was ever \oaiued at more than Rs. 30 000. Consirlerin~ the fact that the plots in auestion were mortgaged the price for which they were sold was "ot low. [634 Hl

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(iii) The coint that the dues under the hond could not be recovered . as arrears of land revenue was not raised at anv earlier otaqe, The coun could not set a•ide the sale on this ~ound because if it had been raised H earlier the GoYernm•nt may well have relied on the power of sale ·jtiven under the bond. The fact that the sale took place under Ilic machinery provided by the Revenue Recovery Regulation and not under any ad hoc machinery set up by the Government could 11ot vitiate the sale. [635 OJ

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[1971] 1 S.C.R.

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SUPREME COURT REPORTS

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630

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· (iv) However, the appeal haJ 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 m !ntioncd ·in the bonds. All the propcrtics- those hypothecated and those not hypothecateJ-werc sold in one lot. This vitiated the sale and the Coun had no option but to declare the sale of alt the properties voiJ. (6J6 A-BJ

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CIVIL APPELLATE . JURISDICTION: . . Civil Appeal No. 542 of - ..

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Appeal from the judgmeni and decree dated January 24. I 964 of the Kerala High Court in Appeal Suit No. 368 of 1959.

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M. C. Chagla, Ganpat Rai anti M(l1111el T. Paikedc1,', for the appellant.

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A. R. Somanatha Iyer, N.' Narayanaswwni, K. N. Bhat and M. R. K. Pillai, for the respondent.

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The Judgment of the Court was delivered by

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Sikri, J, This appeal by certificate granted by the High Court ~f Kerala is directed against its judgment and decree reversing the judgment and decree of the Trial Court -imd dismissing the suit of the original plaintiff, appellant before U!;. The relevant facts for determining the points raised before us by Mr. Chagla. learned counsel for the appellant, are as follows.

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· · On December 5, 193 L the plaintiff executed a hypothecatior bond in favour of the Travancore Government in respect of a loan cfRs. 6,000/-. On December 12. 1931. another bJnd was executed in respect o~ a further loan of Rs. 4,400/-. On May 28, 1932, the plaintiff execut~ another hypothecation bond i:i favour of the father of Neelakaata Iyer 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 1.uka Mathai of Pallithanathu, Kott.iyam Taluk, and the sale of 97 acres of ni/am comprised in survey ~45/32·11/1 and 14 cents of purayidnm comprised in survey ~32/3.

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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 execution costs and the intere't thereon "it-is hereby made known that !07 acres 84 cents of properties belonging to you and comprised in survey numbers 545 / 32-11/1, 481/3, 481/4A, 48l-/4C e.tc. 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 properties in dispute for Rs. 4,510.

·LUKA MATHAI v. NEBLAKANTA (Slkr/, /,) S31

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A The plaintiff presented a petition (Ex. M) to the Division Peshkar against the revenue sale. In this petition it was stated as follows:

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"I received notice stating that the sum will be realised by auctioning the properties comprised in Survey 545/32-11/l, 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 last, 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 II/2, 481/5, 481/4A and 481/4C."

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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."

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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 disnute, namely, 97 acres of nilam comprised in Survey No. 545/32-A/l and 14 cents of puray/dam comprised in Survey No. 537 /3.

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On August 5, 1941, partition suit (0.S. No. 102 of 1116) was instituted and judgment was delivered by the Trial Court in this suit on September 29, 1952. Reference is made to thi~ jud21llent because basing itself on this jud21llent the 1'1ea of res ;udicata was raised by the defendant in the High Court. ·

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The suit out of which the present aopeal arises, namely, ori2inal suit No. 492 of 1953, was filed for setting aside the sale and redemntion of the mortgage. The Trial Court oartly decreed the suit holdinl! that the sale was a nullity. The Hip;h Court. as stated earlier, has reversed this judgment and dismissed the suit.

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The learned counsel for the aooellant raised the following points before us : ( 1) that the revenue sale was a nullity because in effect and substance no oroclamation of sale was issued inasmuch as instead of mentionin<? the orooer revenue numbers of the land, namely, survev No. S45/32-A-1. survey No. 545/32-IT/l H . was mentioned rind in . olace of mentioninl! ~urvev. No. 537 /3 survev No. ~~2/3 was mentioned; (2) that the omnertv valued at Rs. t,00.000/- had been sold for a meagre sum of Rs. 4.510/-, ( 3) that under the Travancore Revenue Recovery Regulation this

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[1971} t S.C.R.

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SUPREME COURT REPORTS .

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632

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. 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 I and 3 to 8 and C schedule items, which were not given. as· security under the bonds; and if the Government had no authority theon the sale of all the properties is void.

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Coming to the first point, there is no doubt tha_t wrong revenue numbers were mentioned in the notice dated May 5. 1939. ln the proclamation issued under s. 32 of. Regulation I of I 068 aitcr 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 I under the heading (name in which the assignment is made : Thandappe{ and number) is. mentioned "1.861 Luka Mathai, Pallithana.thu Kainadi Muri, Neclampetur.'" Survey No. 545/32 is described as Nilam ad te ure as Pandara. vaka •Pattom. The area is 97 acres and faxes · e also mentioned. There is a dispute whether against the. su. y No. 545/32 the letter 'All' existed or '11/1' as in the original proclamation, but th cannot be any dispute that otherwise the desctipllon of the oroperty c' 97 acres is correet and complete. Regarding survey i'lo .. 5377~ again the tenure is described as Pan<'tara Pattom. uca 14· cents and the local taxes are also given.

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In his evidence the plaintiff stated :

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"I was aware that the property mortgaged by me was the property compriseJ in S. No. 545/32/ Al It is being called .as 97 acres. That which was mortgaged was also 97. acres. In addition to AT I 11ave no other properties in S. No. 545/32."

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He was asked : Does anv 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."

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The High Court referred to some earlier proceedings for recovery of the defaulted amounts, due to the Government, which took place' in lHO·M.E, and 1112 M.E. and found that in those caSei the correct 5urvey numbers had bee!) ftiven. But. as far as the· proclamation in auestion. relevant to the present sale are concerned, the High Court found :

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''But the proclamation which have been produced as· Exts. AB; AD & AB all show some correction bv oVet"-writing on the character 'A'· in S. No. 50$5/32/ A/ 1 and the figure '7' in S. No: 537 /3. The oroclamation that was published-in the Gazette on 12-9-1114 gives the Survey Numbers distinctly as 54·5/32/TT/l ·

LUKA MATHAI v. NEELAKANTA (Sikri, J.)

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633

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A and 5 3 2 / 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/ J while in !he original it is 545/32/ Al I, but one cannot be sure whether A has been corrected or not."

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1be High Court however came to the conclusion that the descrip· B tion of the property in the relevant records was sufficient to identify the property correctly and to give the requisite informa· ·ti on 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 hvoothec cated 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 aizainst was really survey No. 545/32/A/1 and 537/3. The High Court further observed that it had not been shown in the D case that the mis-descriotion of survey numbers has caused any real prejudice to the plaintiff in the revenue sale concerned. The High Court observed :

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"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/l or that E there is a piece of land bearing the sub-division TI.I 1 therein."

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The High Court finally concluded :

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"An error in the survey number of the prooerty involved in a nroclamation of sale cannot be held to F he such a vital defect as to comnel us to hold the sale to be one 'without a proclamation' at all and to declare the sale void on that score. esneciallv in view of the fact that. even according to the plaintiff, nobodv was misled by that error." - ·

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G We al!ree with this finding of the High Court. We are satisfied that on the material placed before us no other findinl! could be arrived at. -

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The learned counsel referred to us a number of ca<es to show that if there is no publication of nroclamation then that woulcl vitiate the sale. The learned counsel for the resnondent referred H tis to the decision of this Court in Sheodhvan Sintlh v. Muhammat Kuer. (') Relying on this case the learned coumel says that it (1) {1962] 2 S.C.R. 7~3.

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(1971] l S.C.R.

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634

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SUPREME COURT REPORTS

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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 fo~ 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 c0uld be clearly established. This Court held that "as the khata num· ber, 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 ceitificate bv the omission of one zero from the olot number ." Jn another nassage, refer· ring to the decision of the Privy Council in Thakur Brmnh'I 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 irre· gularity."

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It seems to us that it is clear from the de•ails mentiond in the oroclamation. which we have P1entioned above. that the bidder, the owner and the auctioner had no cloubt about the ide,,ti•v of the nronertv which was being mid. This ','as not a c••P of a non-nublication of the nroclomation oncl. therPfo. the rulings relied on by the learned counsel for the anpellant have no application.

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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).

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In view of the above conclusion it is not necessary to rely on the point of res indicate made by the High Court.

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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 arc; not satisfied that the property was sold at a low price. The Trial Court hils found that no fraud has been proved.

(1) (1913) L.R. 41 I.A. 38.

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LUKA MATHAI I'. NEELAKANTA (Sikri, J.)

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035

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A 'Ih~ third and fourth point5 arise out of the c:ross-objectiO?s tiled by the plaintiff-appellant before us.. The High Court d!Sposed of the cross-objections in the following words :

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"The plaintiff has preferred a cross-objection pleading that the revenue sale ouipit to have bee!! ~eclared void with regard to the other items of properties mcluded R in the plaint schedule also. Admittedly they were e subject-matter oi the attachment and proclaauon which culminated in the revenue sale. No defect m the proceedings except the error in the Survey Numbers discussed above, to effect the validity of the reven1;1e s.ale has been brought to our notice. The cross-ob1echon c has no merits and has only to be dismissed."

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It is not quite clear whether the third ground was specifically rnken 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. 1 of 1068) reads thus :

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"59. All arrears of Public Revenue due to Government other· than land revenue.

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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 himsel~ liable under such agreement,

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and also all sums declarecj by any other Regulation for the time being in force to be recoverable as arrears of Public or Land Revenue,

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may be recovered under the provisions of this Regulation."

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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 pllblic or land revenue. The learn· ed counsel for the respondent has not been able to point out any G such agreei.nent 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 t> 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 mav well have H relied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recoverv Regulation and not under any ad hoc machinery set up by the Government would not vitiate the sale.

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[1971] 1 S.C.R.

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SUPREME COURT REPORTS

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636

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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, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void.

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In the result the appeal is allowed and the judgment of the High Court set aside and the decre.e passed by the Trial Court 'lOdified as follows :

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"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 plainthf do re:over 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.

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G.C.

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Appeal allowed.

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