Kochu Narayanan Vs Janaki Amma and Others

M. Madhavan Nair, J.@mdashA.S. No. 559 is by the 7th defendant, and A.S. No. 619 by defendants 3 and 8 in O.S. No. 100 of 1951 on the file of the District Court, Trivandrum. The suit properties belonged to the tarwad of the plaintiff, and were mortgaged under Exts. P. 6, P. 7 and P. 8 for an aggregate sum of fanams 8,000, and the mortgage interest had ultimately devolved on the 2nd defendant in the case. Defendants 3 and 8 had a sub-mortgage in respect of suit item No. 1 to the extent of fanams 1,500, evidenced by Exts. D17 and D18. In his written statement, the 3rd defendant (the 8th defendant is his wife) submitted readiness to surrender the property on payment of the sub-mortgage amount and challenged the plaintiff''s claim for damages for loss of suit item No. 4 in revenue sale being charged on the entire mortgage amount so as to affect the sub-mortgage of the 3rd defendant and his wife. The court below, even in allowing the claims of other sub-mortgagees, defendants 4 and 6 to be paid out of the suit mortgage amount, did not advert to the like claim made by defendants 3 and 8, but made them liable for mesne profits of the suit properties and costs of the plaintiff, though only in conjunction with the other defendants in the case.

2. Suit item No. 4 was sold for arrears of Revenue on 22-12-1113 and delivered on 6-3-1115 to the 7th defendant in the case, the relative sale certificate being Ext. D14 and the delivery list Ext. D15. The plaintiff questioned the validity of the revenue sale on the ground of the processes that led to it being defective. As per the land records, three persons, viz., Marthandan Raman, Narayanan Parameswaran and Kunju Kalyani were the thandaper-holders of the property. Ext. II is a demand notice issued on 28-3-1113 addressed to all the three thandaper-holders. The endorsement of return thereon indicated Narayanan Parameswaran to be dead. Thereafter, a fresh demand notice, Ext. I, was issued on 25-8-1123, addressed to Marthandan Raman and Kunju Kalyani only. It was duly served on them and on its basis further proceedings were had and the property sold on 22-12-1113. As the property stood registered in the names of three persons of whom one died before the sale, the court below held the revenue sale to be void and therefore, set aside the same and allowed the plaintiff to recover the property. Hence these appeals.

3. The evidence is that Narayanan Parameswaran died in about the year 1110 M.E. The concerned revenue recovery proceedings were had three years after the death of one of the thandaper-holders. Even in the course of the proceedings, his death was brought to the notice of the authorities by the return of Ext. II notice of demand. It was incumbent on them to have made an enquiry as to who his legal representative was before they proceeded to sell the property for recovery of the arrears of revenue.

4. Sections 5 and 41 of the Travancore Revenue Recovery Act, I of 1068, (under which the instant revenue sale took place, which will be referred to hereinafter as ''the Act'') provided:

5. When Public Revenue due on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulter''s movable or immovable property or both, in the manner hereinafter provided.

41. It shall be lawful to the Division Peishkar or Tahsildar to attach or sell the whole or any portion of the land of a defaulter for the recovery of arrears of revenue........

The indication in these provisions is that the property proceeded against for recovery of revenue must be the property of a defaulter. In other words, the property must be of the defaulter when it is actually sold in revenue auction.

5. The word "defaulter" was not defined in the Act, but has been defined in the Travancore-Cochin Revenue Recovery Act (VII of 1951) as meaning "a person from whom an arrear of public revenue is due, and includes a person who is responsible as surety for the payment of any such arrear of revenue." This definition, being in accordance with the ordinary sense of the word in common parlance, may be deemed to indicate the meaning in the old Act also. The defaulters then are primarily the landholders. u/s 1(c) of the Act:

Landholder means the registered holder for the time being of any land, and includes his legal representatives.

It follows that a defaulter is the person entered in the thandaper as the landholder or his legal representative. In the context of this case, the defaulters were Marthandan Raman, Kunju Kalyani and the legal representatives of the deceased Narayanan Parameswaran.

6. If the property sold be of the defaulter the Government can have it sold only in due course of law; and that is what is implied in the expression "in the manner hereinafter provided" in section 5 of the Act (quoted above).

The process for such a sale is detailed in Sections 23A to 48 of the Revenue Recovery Act.

Section 23A of the Act provided:

(1) Before proceeding to attach the immovable property of a defaulter, a written demand signed by the Thasildar shall be served on the defaulter, specifying the amount of Revenue due with interest, the land in respect of which it is claimed, and the date when it fell due, the batta due to the person shall serve the demand and the time allowed for the payment.

(2) Such demand shall be served on the defaulter in the manner prescribed in the CPC for serving summonses on defendants.

(3) If within the time prescribed under Sub-section (1), the defaulter objects to the claim of arrears wholly or in part, the Tahsildar shall inquire into the objection and record a decision before proceeding to attachment.

In Eravipillai v. Maluk Mohammad (A.I.R. 1953 T.C. 494 F.B.) the provisions of the above section relating to the issue and service of a demand have been held to be mandatory and a sale held without proper service of such demand void. Para 28 of the judgment reads:

........we have no hesitation in holding that Section 23A, Travancore Revenue Recovery Act contains a mandatory provision, that compliance with that provision is a condition precedent for conducting a sale under the Act, that it is only if that condition is satisfied that the revenue authority will get jurisdiction to sell the immovable property of the defaulter under the Act. A sale held without the issue of a notice as prescribed by the section will therefore be void.......

7. In order to ensure proper notice of demand being issued to all the concerned defaulters, rules enjoin the revenue authorities to keep the thandaper up to date before commencement of every kist. The Pokkuvaravu Rules, dated 6th March 1921, provided as follow:

6. The Settlement Department having issued pattas at the Settlement to all holders of land liable to the payment of revenue, all changes subsequent to Settlement have to be brought to book in order to keep the land revenue accounts up to date. The process by which these changes or mutations of names are ascertained and recorded in the Government accounts is known as Pokkuvaravu.

8. Pokkuvaravu or transfer of registry falls under three clauses:

(a) by voluntary transfer;

(b) by decree of court or by Revenue sale;

(c) by succession.

11. In regard to transfers due to succession, under clause (c), it is the duty of the Proverthicar (village officer), whenever a Pattadar whose name is entered in the Thandaper account dies, to report the fact to the Tahsildar with the name of the next legal heir so far as can be ascertained from his personal knowledge or local enquiry.

15...........

(3) The Assistant Tahsildar shall visit each Pakuthi (village) at least once in three months for conducting Pokkuvaravu enquiries after giving at least a week''s previous notice of the date or dates fixed for such work in each Pakuthi. Such notices shall be published by the Proverthicar, by beat of tom-tom in the Pakuthi and copies of the notice shall also be affixed to the Taluk and Village offices.

16. The notice referred to in Rule 15(3) shall give survey nos. and sub-division nos., if any, of the lands for which transfer of registry has been applied for found necessary, with the names of the existing Pattadar and proposed transferee and shall require all persons who may be interested in the registry to appear in person or by authorised agent, with the documentary and oral evidence in support of their claim.

17. On the day fixed in the notice, the Assistant Thasildar shall hold a summary enquiry in each case in the presence of the ryots and village Officers, note down the evidence adduced and record in his decision in his own hand as to the person in whose name the patta should be transferred......

21 A. Appeals from the decision of the Tahsildar or the Deputy Tahsildar shall be to the Assistant Peiskar........

B...........

C...........

D It shall also be open to the Division Peishkar, if sufficient grounds exist, to revise, cancel or alter on his own motion or otherwise an original decision passed under these rules by the Tahsildar or the Deputy Tahsildar or any decision passed by the Assistant Peishkar in appeal, at any time............

25. The Tahsildar should satisfy himself during his inspections that the pattas have been issued and the Thandaper brought up to date. Any delay or laxity in this respect should be severely noticed.

26. Before the close of Karkadagam each year, the Tahsildar shall record a certificate in the Thandaper Account of each Pakuthi that all the Pokkuvaravu pattahs have been issued and that the Thandaper Account has been brought up to date.

8. These rules have been held to apply even in cases where there is a plurality of landholders and only one of them was dead at the time of the revenue sale.

In Kulathu Iyer v. Bhargavi Amma (1948 Trav. L.R. 131) it was observed:

The question then is whether in the case of joint pattadars notice to one of them is sufficient to validate the sale proceedings under the Revenue Recovery Act. There is no reported decision of this Court on this point. A.S. 123 of 1119 decided by this Court is a case in which there was service u/s 23A to one of the two thandaper-holders. Omission to send notice to the other thandaper-holder also was one of the grounds for setting aside the revenue sale involved in that case.

The above observations were adopted by a Full Bench of the Travancore-Cochin High Court in Eravi Pillai v. Maluk Mohammad (A.I.R. 1953 T.C. 494, 514-515):

When there are more than one thandaper-holder it is necessary that the demand notice should be served on all of them. Then only can it be said that there has been a service of the demand notice as provided in Section 23A(2).

9. It was a gross violation of these relevant rules and a denial of justice to the public that the officers, even after being told of the death of one of the thandaper-holders, proceed to sell the land without caring to find out who his legal representative was and trying to serve a notice of demand on him. No proceeding against a landed property would be of any validity without proper representation of the holder thereof in the proceeding, be it a revenue sale or an execution sale.

10. "In the eye of the law the land must be his (defaulter''s) property at the time of the sale," observed Venkataramana Rao J. in Thiruvengadam Pillai v. Koolai (A.I.R. 1942 Mad 230). "The question therefore is, can it be considered to be Ramanarayana Pillai''s property on the date of sale in this case? He having died, his property vested in his sons and therefore on the date of sale the property belonged to them. No doubt they took the property subject to the obligation of paying the arrears of revenue; nevertheless it was their property. The moment a man dies, the ownership which he had in the property is lost. That is the fundamental principle of jurisprudence (Vide Holland''s Jurisprudence, Edn. 13, p. 222). As Salmond observes in his book on Jurisprudence:

Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives and are now as destitute of rights as they are free from liabilities........They do not even remain the owners of their property until their successors enter upon the inheritance.

So when the land is sold as the property of the defaulter, what was sold was the right of the dead man and the sale would pass no title to the purchaser.

11. In this case, notice of demand had been issued only to two out of the three thandaper-holders, without any attempt to ascertain and serve a demand on the legal representatives of the third. The revenue sale was therefore rightly held to be invalid and been set aside by the court below. A.S. No. 559 of 1957 is therefore dismissed.

12. It is not disputed that defendants 3 and 8 are sub-mortgagees in possession of a portion of the mortgaged property, viz., of suit item No. 1. In the case of other sub-mortgagees, being defendants 4 and 6, the court below has adjudicated their claims and directed the amounts due to them to be paid out of the mortgage amount in this suit, but made nothing of the kind in regard to the claim of defendants 3 and 8 though the fact of their claim has been noticed in its judgment. Counsel for the plaintiff contends that the distribution of the mortgage amount among the mortgagees and persons claiming under them is not a matter to be gone into in a suit for redemption of the mortgage, but must be relegated to a fresh suit among the claimants thereof. I do not agree with this argument.

13. The mortgage creates an interest in immovable property. The very purpose of having the sub-mortgagees impleaded in a suit for redemption is to affect their interests in the property, and to enable the plaintiff to determine their rights and recover the property from them. If an interest in immovable property vested in a defendant is to be affected by the decree his rights in the property have necessarily to be determined and provided for appropriately. The learned author Mulla in his book ''Transfer of Property Act'' (see 4th Edn., page 366) observes:

When a mortgagee sub-mortgages his mortgage to another person without the knowledge of the original mortgagor, and the original mortgagor pays off the amount to the mortgagee the sub mortgagee''s rights against the land are extinguished........But, if the original mortgagor has notice of the sub-mortgage he cannot dispossess the sub-mortgagee without redeeming him.

Perhaps, in cases where the question of apportionment of the mortgage amount among the mortgagees and sub-mortgagees raises complicated issues, it may be expedient to pass a preliminary decree allowing the plaintiff-mortgagor to redeem the property on deposit of the mortgage amount in court and proceed to pass a supplemental decree to apportion the mortgage amount or the price of redemption among the mortgagees, sub-mortgagees and all other parties claiming the same or part thereof. But it cannot be said that an enquiry as to the relative rights in the mortgage amount, of the mortgagees and sub-mortgagees made parties to an action in redemption is foreign to the scope of the action. The court below has rightly done that in the case of two of the sub-mortgagees, but did not care to do that in regard to defendants 3 and 8 who were admittedly sub-mortgagees in respect of suit item No. 1. Needless to say, it was quite unwarranted.

14. The 3rd defendant has proved his sub-mortgage in the suit. It is agreed between counsel and is proved by Exts. D17 and D18 that the amount of his sub-mortgage is fanams 1,500/-. The decree of the court below has to be modified to provide payment of the same to the defendants 3 and 8.

The court below has made the defendants 3 and 8 liable for mesne profits and costs due to the plaintiff. No misconduct on the part of these defendants has been made out in the case. The plaintiff has by his impleading defendants 3 and 8 in the suit admitted to have notice of their sub-mortgage. She cannot then claim to recover the property in their possession without paying their sub-mortgage amount. As neither payment nor even a provision for payment of the amount due to defendants 3 and 8 been made in the suit, the possession of these defendants up to this date cannot in any way be characterised as wrongful. The decree for mesne profits against defendants 3 and 8 is not therefore warranted.

The rule that in a redemption suit the mortgagees are entitled to their costs enures to the benefit of the sub-mortgagees as well. The court below has allowed the plaintiff to realise his costs and made defendants 3 and 8 also liable for the same. Since no misconduct on the part of the defendants 3 and 8 has been made out, it is prima facie unjustifiable and is therefore set aside as against the defendants 3 and 8.

In the circumstances, there will be no order as to costs in both the appeals.