Meenakshi Sundaram Pillai vs Sthanutha Iyer and Another

A.S. 54 of 1123 arises out of O.S. 85 of 1116, and A.S. Nos. 328 and 351 of 1123 arise out of O.S. 88 of 1116 of the Nagercoil District Court. The Plaintiff in both the suits is the same. The 1st Defendant in the two suits is also the same. The State is the 3rd Defendant in O.S. 85 of 1116 and the 2nd Defendant in O.S. 88 of 1116. Defendants 4, 5 and 6 in O.S. 85 of 1116 are the successive official receivers attached to that District Court. Defendants 3 and 4 in O.S. 88 of 1116 are also the official receivers. Both the suits are to set aside the revenue safes relating to two different properties. O.S. 85 of 1116 relates to the revenue sale of 27 cents in S. No. 3237 B. and O.S. 88 of 1116 relates to the revenue sale of 20 cents in S. No. 24/A. These two suits were tried together and the whole evidence was recorded in O.S. No. 85 of 1116. The leading judgment was also written there.

The suit properties in both the suits belonged to the family of one Bhoothalingom Iyer Ramakrishna Iyer and his brother Bhagavathisubramonia Iyer. This family was in heavily involved circumstances and Ramakrishna Iyer, to avoid his creditors, had gone to British India in 1113. The Plaintiff had already obtained against him a money decree in O.S. 30 of 1111 of the District Court, Nagercoil. Thereafter, on the application of the Plaintiff in I.P. 3 of 1113, Ramakrishna Iyer was adjudicated as an insolvent and his family properties vested in the official receiver. The official receiver sold in auction the plaint properties in both the suits and other properties on 22-7-1115 and the Plaintiff'' purchased the same. But later on the Plaintiff discovered that the State had sold that plaint properties in both the cases in 1114 for arrears of land revenue. That sale right now vested in the 1st Defendant. The sale is impeached by the Plaintiff as null and void for having been held behind the back, of the Official Receiver and without notice to him. There was also no proper demand notice issued to the ''Pattadars''. The sales in both the cases have therefore to be set aside. In 1116, the 1st Defendant obtained delivery of possession of the properties in both the cases and so recovery of possession was sought forms with arrears of mesne profits.

The 1st Defendant and the State contested the suit. The State contended that the two revenue sales held were for arrears of tax due en the properties for the year 1114, that the sales were held in accordance with law and in conformity with all the provisions of the Revenue Recovery Act, that no notice of the proceedings was to be given to the Official Receiver, because in the first place, the State was not aware of the insolvency proceedings, and in the second place, the insolvency proceedings could not in any way affect the validity of the revenue sales. As the Plaintiff had no interest in the properties at the time of the revenue sales he was not competent to question the sales. Both the suits were not maintainable and they were barred by limitation. The sales themselves were conducted alter due notice to the thandper-holders and the allegation that the Official. Receiver was entitled to notice was not sustainable.

The 1st Defendant, while supporting the State, also contended that as the Plaintiff had attempted to avoid the sales by filing appeal against the revenue proceedings before the Land Revenue Commissioner he was not competent to bring the suits.

In O.S. 85 of 1116, the lower court found that the absence of notice to the Official Receiver did not invalidate the sale. But, all the same, the proceedings that led to the revenue sale were invalid as the endorsements on those notices that the defaulters refused to accept the same were false for the demand notices which preceded the sales could not have been taken to the residence of the defaulters. It was therefore held that the sale was null and void, that on the date of the suit the 1st Defendant was in possession of the plaint properties, that himself and the 2nd Defendant in O.S. 85 of 1116 were liable for mesne profits, that the suit was not barred by limitation and that the suit was maintainable. In both the cases therefore the revenue sales were set aside and decrees for possession with mesne profits had been passed. The 1st Defendant filed A.S. 54 and 351 of 1123, and the State filed A.S. 328 of 1123.

Exs. xiii and xiv are the demand notices sent from the Taluk Office to Ramakrishna Iyer and his brother Bhagavathisubramonia Iyer asking them to pay the arrears of tax due for Vrischigom 1114. Exs. xvi and xv are similar notices demanding the tax for ''Edavam'' of the same year. Exs. ii and iii are also demand notices for tax due from them from the properties in O.S. 85 of 1116. There are endorsements on the back of these notices that as the pattadars refused to accept the same the copies were affixed on the outer door of their houses. Exs. xiii and xiv are the originals of demand notices said to have been affixed on the outer door of house No. 98. The duplicates of Exs. xv and xvi are said to have been affixed on the outer; door of the house No. 96, and those of Exs. if and iii on the outer door of the house No. 32.

These records would show that the revenue authorities had started proceedings by issuing demand notices as required by law. It cannot therefore be mentioned that the revenue authorities acted without jurisdiction in proceedings against the properties now seen to have been sold in revenue auction. The case of the Plaintiff in both the suits was that Ramakrishna Iyer had been adjudicated insolvent in 1113, that the family properties had vested in the Official Receiver that the Revenue sales in the two cases related to arrears of tax due in 1114, and that the sales held without, notice to the Official Receiver were null and void. The, other allegation in the plaint was that notices had not been issued to Pattadars. As it is seen that the notices had been issued to the pattadars, the rulings in - Official Receiver, Kottayam v. Dewan of Travancore 1946 Trav LR 872 and - Narayana Pillai v. Dewan of Travancore 1950 Trav-C LR 33 would show that no notices under similar circumstances to the Official Receiver were necessary. Therefore, both the grounds taken by the Plaintiff would fail even if the endorsements on the demand notices were not proper. From the conduct of the parties in the court below, it was amply evident that the Plaintiff proceeded on the assumption that the burden of proof to show that the sale deeds were null and void was not on him.

It is true that the two decisions mentioned above were pronounced long after the present suit was instituted. But the Plaintiff, by not taking steps to substantiate his contentions, was apparently misconceiving his position. The peons who effected the service of the notices were examined as D.W. 6 and 1, but the attestors to the endorsements had not been examined. The learned Judge who decided the case must have experienced some difficulty in understanding the case, for he goes beyond the pleadings to find out a case for the Plaintiff and to hold that the sales are null and void. He refers to the differences in the house numbers in the three sets of demand notices. But the witnesses who served the notices and who wrote the endorsements had not been questioned about the same. The Judge would thereby be springing a surprise on the Defendants by relying on a new case without any notice to them. The learned Judge further strains himself to find out the legality of the service of the attachment and proclamation notices in the two cases. The Plaintiff had no such case about those proceedings, nor had the Defendants any opportunity to meet the case which had been stated in the judgment. If the pleadings are not clear and the parties are not allowed to meet their opponents'' cases, there would evidently be a miscarriage of justice.

The State had contended, that even according to the Plaintiff, the sale in his favour by the Official Receiver was in 1115, whereas, the revenue sales in the two cases were held in 1114, that the Plaintiff had no right to the properties when the revenue sales were held and that his present suit was not maintainable. It had come out in evidence that though the Official Receiver had sold the properties in auction, no sale deed had been executed by him. An argument was therefore built up by the counsel for the Defendants that unless a registered sale deed was executed conveying whatever rights the Official Receiver had over the properties, in favour of the auction-purchaser, the latter would not get any right over the properties thus purchased by him in auction. The case in this form had not been put forward in the court below though it was possible for the Defendants to argue the same on the contentions raised there. At any rate, even with out deciding the tenability of such a contention, we are of the view that the Plaintiff should be given an opportunity to meet this case of the Defendants.

It had been argued for the Appellant, that when Ramakrishna Iyer had been adjudicated as an insolvent, the shares of his coparceners in the joint Hindu family would not vest in the Official Receiver even if Ramakrishna Iyer was the manager thereof. According to him, what would vest in the Official Receiver would be the insolvent''s share in the family properties as well as the insolvent''s right to sell the properties of his co-parceners under certain limited circumstances. It was argued, that apart from this, the properties of the co-parceners would not vest in the Official Receiver and he could not proceed against the same if the shares of the other coparceners had been sold or alienated before the Official Receiver took steps to proceed against those properties by virtue of the vesting of the rights. They stated that if their position was accepted as correct, the Official Receiver''s sale regarding Bhagavathisubramonia Iyer''s rights in the family properties would be inoperative as his share in the plaint properties had been sold in 1114 by the revenue authorities before the Official Receiver took stops in that year to sell the same. This aspect had also not been considered by the court below. No doubt, the pleading''s of the parties on this point were not clear or precise.

It was therefore evident that as regards some matters that arise in the case, the parties were misled in leading their evidence. As regards certain other points, the pleadings were not clear and definite, and it appears to us, that due to the default of both the parties there was no proper trial of the case. With great reluctance, but in the interests of justice, we are forced to set aside the decrees in both the cases and send them back for fresh trial. The lower court will record the pleadings in the case so that both the parties could with lucidity and precision put forward their cases and let in further evidence in support of the same. Necessary issues would be raised, and any further evidence the parties wish to let in would also be recorded, and the two cases decided afresh.

In the result, we set aside the decrees of the lower court in the two suits and remand the cases for fresh disposal in the light of the observations made above. Since this remand was necessitated because of the defect in the pleadings of both the parties. We direct them to suffer their costs of this Court except the fees paid on the memoranda of appeals which will be refunded to the Appellants. The costs of the trial court will abide the final result of the suits.