Civil Appeal No 4380 of 1991
From the Judgment and Order dated 1041991 of the Madras High Court in Writ Appeal No 38 of 1991
K Parasaran KV Vijaya Kumar and V Bala Chandran for the Appellants
CT Selvamani and PP Tripathi for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
Special Leave is granted
This appeal is against the judgment dated April 4 1991 of the Madras High Court
A sum of Rs 1216350 p was alleged to have been misappropriated by the appellant now he was acquitted of the charge of misappropriation and for the recovery thereof his 1307 acres of coffee estate situated in Semmanthaputhur village was brought to sale under the Tamil Nadu Revenue Recovery Act 1894 for short The Act 
On March 30 1979 the sale by auction was held by the Tahsildar
The first respondent purchased for a sum of Rs 12225 and deposited a sum of Rs2000 being 15 per cent of the sale price
Under Sec
36 of the Act the first respondent should have deposit ed the balance consideration within 30 days from the date of the auction
On October 231981 the sale was confirmed and the balance amount was deposited on November 4 1981
The appellant filed an application but by proceed ing dated October 23 1981 the Revenue Divi sional Officer overruled the objections and dismissed the application
On appeal the Addl
Distt
Collector Salem set aside the sale on October 131982
The first respondent filed writ petition 184 No 246 of 1984 in the High Court
The learned Single Judge by judgment dated August 21 1990 quashed the order of the Addl
Collec tor
On writ appeal the Division Bench dis missed it
Thus this appeal
The formidable objection raised by the appellant is that it is mandatory under Sec36 that the date and place of sale shall be published in the Gazette and that the publica tion did not mention the place of sale
There fore the sale is invalid in law
It is also his further plea that it is equally mandatory that the balance sale consideration of 85 should be deposited within 30 days from the date of sale which was done only on November 4 1981 long after one year and eight months of the date of sale
The sale and Confirmation thereof are therefore illegal
The learned Single Judge and the Division Bench held that Form 7A of the forms prescribed under the Act read with relevant provisions of the Board Standing Order No41 does not prescribe the place of sale and that therefore the omis sion to specify the place of sale does not render the sale invalid nor an irregularity
Shri Selvamam the first respondent in person himself a practising Advocate contended that it is Form 7 and not Form 7A that would be applicable to the facts of the case
Form 7 contains the place of sale and that it was complied with
Therefore the sale is not illegal
It is also contended that the deposit was made after protracted correspondence and that therefore the non deposit within 30 days from the date of sale is not illegal
At any rate having accepted the amount the authority acquiesced to the depositTherefore the confirmation of the sale is not illegal
We find no substance in either of the conten tions
The contention that Form 7 and not Form 7A would be applicable to the facts is not the case set up or argued either before the authorities or the courts below
For the first time he cannot raise that plea in this Court
That apart specifically the High Court learned Single Judge and the Division Bench held that it is form 7A that is applicable and that it does not prescribe publication of place of sale and therefore the omission thereof does not render the sale invalid
The High Court wholly misconceived of Sec36
A reading of Sec
36 manifests that the word shall  is mandatory in the context
The publication is an invitation to the intending bidders to prepare and participate at the bid
Unless there is a due publication of the date and place of sale the intending purchasers cannot be expected to run after the Sale Officer to find out the date and place of sale and to participate thereat
The Sale officer has a statutory duty and a responsi bility to have the date and place of sale men tioned in the notice and given due publication in terms of the Act and the Rules
Public auction is one of the modes of sale intending to get highest competitive price for the property
Public auction also ensures fairness in actions of the public authorities or the sale 185 officers who should act fairly objectively and kindly
Their action should be legitimate
Their dealing should be free from suspicion
Nothing should be suggestive of bias favouri tism napotism or beset with suspicious fea tures of underbidding detrimental to the legitimate interest of the debtor
The fair and objective public auction would relieve the public authorities or sale officers from above features and accountability
Any infraction in this regard would render the sale invalid
It is settled law that the word shall  be construed in the light of the purpose the Act or Rule that seeks to serve
It is not an invariable rule that even though the word shall  is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be directory
The construc tion ultimately depends upon the provisions itself keeping in view the intendment of the enactment or of the context in which the word shall  has been used and the mischief it seeks to avoid
Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself the consequence has to be determined with reference to the nature of the provision the purpose of enactment and the effect of non compliance thereof
In its absence the conse quence has to be determined with reference to the effect of the non compliance of the provi sion of the legislature
Mere use of the word shall  need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory
But given due consideration to the object design purpose and scope of the legislation the word shall be construed and interpreted in that design and given due emphasis
See36 obligates the Sale Officer Tahsildar that he shall publish the date and place of sale
The object thereby is an invita tion to the public at large that the notified property would be brought to sale at that specified time and place and that they are invited to participate if they so desire
To reiterate for emphasis and continuity that the object of the sale is to secure the maximum price and to avoid arbitrariness in the proce dure adopted before sale and to prevent under hand dealings in effecting sale and purchase of the debtor s property
As a responsibility as sale officer and a duty towards the debtor the sale officer should conduct the sale strictly in conformity with the prescribed procedure under the statute and the rules as the case may be
Such due and wide publicity would relieve the debtor from the maximum liability he owes and payable to the creditor
This responsibility is not only salutory to vouchsafe bonafides in the conduct of the sale officer but also to ensure fairness in the procedure adopted in bringing the property of the debtor to sale
Considered from this perspective the non compliance of Sec35 ie omission to mention the place of sale world visit with deprivation of the property to the debtor 186 for an inadequate sale consideration due to absence of competing bidders
Thus we hold that specification of the date and place of sale shall be mandatory
The forms either 7 or 7A are only procedural and they should be in conformity with Sec 36
The form cannot prevail over the statute
The omission of specification of the place of sale in the form renders the sale not merely irregulate but also invalid
Equally the second objection is insur mountable
It is mandatory that the balance of the sale amount shall be remitted within 30 days from the date of auction and if not the earnest money deposited is liable to forfei ture
Confirmation of the sale should precede the deposit of the sale amount
36 man dates remittance of the balance of 85 of the sale consideration within 30 days from the date of auction
It is obligatory on the purchaser to deposit the amount within that period unless he is prevented by an order of the court or tribunal from so making depos it
The non compliance renders the 15 depos it liable to forfeiture
Therefore the con firmation of the sale without compliance is illegal
We hold that the sale is vitiated by manifest error of law and rightly set aside by the Addl
Collector Salem Appellate Authority
The High Court both the learned Single Judge and the Division Bench committed menifest error of law in interfering with the order of the appellate authority
The appeal is accordingly allowed
The writ petition stands dismissed and that of the order of the Addl
Distt
Collector Salem restored but in the circumstances parties are directed to bear their own costs throughout
SB Appeal allowed


Summary:
A common question of law that arises for determination in these appeals by special leave is whether the act of a member of a joint family by which he impresses his individu al property with the character of joint family property or throws it into the hotch potch of the joint family or blends it with the joint family property is a disposi tion  within the meaning of the 
In Civil Appeal No 1204 of 1979 the facts are One Natesan Chetty who died on 131972 was the Karta of a Hindu Undi vided Family consisting of himself and his four sons
He owned five house properties in Madras On 18670 and 1691970 he made declarations by which he impressed the properties with the character of joint family properties and further declared that they would thereafter belong to HUF of which he was the Karta
Thereafter a partition was effected in the family in March 1971 in which two of the properties came to his share
Sri Chetty had also borrowed Rs 46800 from HUF out of the rental income from the properties for his business purposes
These borrowings were duly repaid in April 1971
In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18670 and 16970 were dispositions within the meaning of the said expression as defined in the second explanation to section 215 of the 
He further held that since the declarations were made with out consideration they amounted to gift which had been made within two years of the date of death and hence liable to be assessed as part of the estate passing on death under sec tion 9 of the Act
The two properties which had fallen to the share of the deceased passed on the death of the de ceased
He accordingly included Rs 122500 the value of the other three properties also in 168 the principal value of the estate
The Asstt
Controller further held that a sum of Rs 46800 being the loan taken and discharged by the deceased should also be added back in computing the principal value of the estate by virtue of section 462 of the Act
Dissatisfied with the conclusion of the Asstt
Control ler the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful
Thereupon the Department preferred an appeal to the Tribunal which following the decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty held that the sum of Rs 122500 could not be included in the value of the estate passing on the death and consequently that the add back of Rs 46800 was also not justified
Thereupon the Controller of Estate Duty applied under Section 64 1 of the Act for a reference to the Madras High Court for its opinion on the two questions
The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty and Control ler of Estate Duty vs Smt
Mookammal The High Court declined to call for a reference and dis missed the application for reference
Hence the appeals by the Department
Dismissing the appeals this Court HELD Blending or partition will not be a disposi tion  within the ordinary connotation of the expression but will be one if either of the Explanations to Section 215 are attracted
179 G Unlike an unequal partition the act of blending will not amount to a disposition  attracting Ss 9 and 27 of the Act
179 H 180 A The High Court was right in holding that the acts of blending did not result in the gift  of immovable proper ties within the meaning of the statute
180 C Though a declaration of blending does not amount to a gift  where the act of blending is followed up by a subse quent partition the two transactions taken together do result in the extinguishment at the expense of the de ceased of his rights in the properties which go to the share of other coparceners at the subsequent partition and if the two can be treated as parts of the same transaction the Explanation to Section 2 15 may be attracted
180 D E 169 Rajamani Ammal vs Controller of Estate Duty  Controller of Estate Duty vs Smt
Mookammal  Rangabayaki Ammal vs CED  CED vs Kantilal Trikamlal  Stremann vs CIT SC Goli Eswariah vs CGT  CGTv
Getti Chettiar  Cherukuru Eswaramma vs
CED  CED vs Jai Gopal Mehta  CED vs Laxmi Bai  CEDv
Babubhai T Panchal  and CEDv
Satyanaravan Babulal Chaurasia  referred to