Case: Luka Mathai Vs. Neelakanta Iyer Subramonia Iyer

1. 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 follows2. On December 5, 1931, 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, 1938, the plaintiff executed another hypothecation bond in favour of the father of Neelakanta 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 cs. 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 No. 545/32-11/1 and 14 cents of puravidam comprised in survey No. 532/33. 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. 10 ca. 9 under the special loan plus the execution costs and the interest therein it is hereby made known that 107 acres 84 cents of properties belonging to your and comprised in survey Nos. 545/32-11/1, 481/3, 481/44, 481/40 etc., of Pulinkunnu Pakuthy and which were attached will be sold in auction on 27th Madam, 114. On May 10, 1939, the revenue auction took place and the respondent purchased the properties in dispute for Rs. 4, 510/-. The plaintiff presented a petition (Ext. M) to the Division Peshkar against the revenue sale. In this petition it was stated as followsI received notice stating that the sum will be realised by auctioning the properties comprised in Survey Nos. 545/32-11/1, 481/5, 481/4-A, 481/4-C 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 Nos. 545/32-11/2, 481/5, 481/4-A and 481/4-Csince 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/- odd4. The sale was, however, confirmed by the Division Peshkar. The sale certificate (sanad) was issued to the respondent on November 13, 1929. The sale certificate was executed and issued under Section 34 of Regulation 1 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 Puravidam comprised in Survey No. 537/35. On August 5, 1941, partition suit (O.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 this judgment because basing itself on this judgment the plea of res judicata was raised by the defendant in the High Court6. 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.

Reasoning: 8. Coming to the first point, there is no doubt that wrong revenue numbers were mentioned in the notice, dated May 5, 193910. 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 atIn our opinion, the proclamation satisfies the requirements of Section 32(2)14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court15. 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 proved16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before usThe 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 replied 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 boe machinery set up by the Government would not vitiate the sale19. 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 1 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.