Luka Mathai (Dead) by Legal
Representative Vs. Neelakanta Iyer Subramonia Iyer  INSC 138 (26 May
26/05/1970 SIKRI, S.M. (CJ) SIKRI, S.M. (CJ)
CITATION: 1972 AIR 383 1972 SCR (1) 977
Travancore Revenue Recovery Regulation 1 of
1068 M.E. s.
32(2)--Agricultural land hypothecated to
government sold for non-payment of loan--Wrong survey numbers mentioned in
proclamation of sale--Sale not vitiated it identity, of plots not in doubt—Mis description
whether resulted in low price--Sale is vitiated when plots other than those
hypothecated are sold along with those hypothecated.
The appellant hypothecated certain
agricultural lands to the Travancore State Government against loans received by
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. 545/32A-1 was wrongly mentioned as
545/32-11/1 and the number of Plot of plot no. 537/3 was wrongly mentioned as 532/3.
Certain other plots held by the appellant although not hypothecated to the
Government were also sold. The appellant presented a petition to the Division
Peshkar challenging the aforesaid revenue sale without success. The appellant
then filed a suit 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, however, reversed the judgment and dismissed the suit. With
certificate appeal was filed in this Court. The appellant contended: (i) that
the revenue sale was a nullity because in effect and substance no proclamation
of sale was issued in as much as wrong revenue numbers were mentioned therein.
(ii) that on account of wrong numbers being
mentioned property worth. Rs.1.00,000 had been sold for a meagre sum of
Rs.4,510; (iii) that under the Travancore Recovery Regulation the property in
question could not be brought 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.
HELD : (i) The ;ale of the survey numbers
which were hypothecated to the Government was not vitiated by the mere fact
that the survey numbers relating thereto were wrongly mentioned. It was only a
case of misdescription and their identity was never in doubt. [634 C-E]
Sheodhvan Sineh v. Muhammat Kuer  2 S.C.R. 753 and Thakur Barhma v. Jiban
Ram Marwarl (1913) L.R. 41 I.A. 38, applied.
(ii) There was no material to show that the
property was ever valued at more than Rs.30,000. Considering the fact that the
plots in question were mortgaged the price for which they were sold was not
low. [634 H] (iii) The point that the dues under the bond could not be
recovered as arrears of land revenue was not raised at any earlier stage. The
court could not set aside the sale on this ground because it had been raised
earlier the Government may well have relied on the power of sale Riven under
the bond. The fact that the sale took place under the machinery provided by the
Revenue Recovery Regulation and not under any ad hoc machinery set up by the
Government could not vitiate, the, sale. [635 G] 630 (iv) However, the appeal
had 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 mentioned in
the bonds. All the properties-those hypothecated and those not
hypothecated--were sold in one lot. This vitiated the sale and the Court had no
option but to declare the sale of all the properties void. [636 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 542 of 1967.
Appeal from the judgment and decree dated
January 24, 1964 of the Kerala High Court in Appeal Suit No. 368 of 1959.
M. C. Chagla, Ganpat Rai and Manuel T.
Paikeday, for the appellant.
A. R. Somanatha Iyer, N. Narayanaswami, K. N.
Bhat and M. R. K. Pillai, for the respondent.
The Judgment of the Court was delivered by
Sikri, J. 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 follows.
On December 5, 193 1, 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, 1932, the plaintiff executed
an-other hypothecation bond in favour of the father of Neelakanta lyer
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 Luka Mathai of Pallithanathu, Kottayam Taluk, and the sale of 97 acres
of nilam comprised in survey 545/32-11/1 and 14 cents of purayidam comprised in
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 executio costs and the interest thereon
"it is hereby made known that 107 acres 84 cents of properties belonging
to you and comprised in survey numbers 545 / 32-11/1, 481/3 , 481/4A, 481/4C
etc. 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/-.
631 The plaintiff presented a petition (Ex.
M) to the Division Peshkar against the revenue sale. In this petition it was
stated as follows :
"I received notice stating that the sum
will be realised by auctioning the properties comprised in Survey 545/32-11/1,
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 la st, 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 11/2, 481/5, 481/4A and 481/4C." 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." 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 dispute, namely, 97 acres of nilam comprised in
Survey No. 545/32-A/1 and 14 cents of purayidam comprised in Survey No. 537/3.
On August 5, 1941, partition suit (O.S. No.
102 of 11 16) 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 Court.
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.
The learned counsel for the appellant raised-
the following points before us : (1) that the revenue sale was a nullity
because in effect and substance no proclamation of sale was issued inasmuch as
instead of mentioning the proper revenue numbers of the land, namely, survey
No. 545/32-A-1., survey No. 545/32-II/1 was mentioned and in place of
mentioning survey No. 537/3 survey No.. 532/3 was mentioned; (2) that the
property valued at Rs. 1,00,000/- had been sold for a meagre sum of Rs.
4,51O/-, (3) that under the Travancore Revenue, Recovery Regulation this 632
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 1 and 3 to 8 and C schedule items, which were not given as security under
the bonds; and if the Government had no authority then the sale of all the
properties is void.
Coming to the first point, there is no doubt
that wrong revenue numbers were mentioned in the notice dated May 5, 1939. In
the proclamation issued under s, 32 of Regulation 1 of 1068 after. 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 1 under the heading
(name in which the assignment is made :
Thandapper and number) is mentioned
"1861 Luka Mathai, Pallithanathu Kainadi Muri, Neclamperur." Survey
No. 545/32 is described as Nilam and tenure as Pandaravaka Pattom. The area is
97 acres and taxes are also mentioned. There is a dispute whether against the
survey No. 545/,32 the letter 'A/1' existed or '11/1' as in the original
proclamation, but there cannot be any dispute that otherwise the description of
the property of 97 acres is correct and complete.
Regarding survey No. 537/3 again the tenure
is described as Pandara Pattom, area 14 cents and the local taxes are also
In his evidence the plaintiff stated "I
was aware that the property mortgaged by me was the property comprised in S.
545/32/Al. It is being called as 97 acres.
That which was mortgaged was also 97 acres.
In addition to All have no other properties
in S. No. 545/32." He was asked : Does any 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." The High
Court referred to some earlier proceedings for recovery of the defaulted amounts,
due to the Government, which took place in III 0 M.E. and 1 1 12 M.E. and found
that in those cases the correct survey numbers had been given. But as far as
the proclamation in question relevant to the present sale are concerned,
the,High Court found "But the proclamation which have been produced as
Exts. AB, AD & AE all show some correction by over-writing on the character
'A' in S. No.
545732/ A/ 1 and the figure '7' in S. No.
537/3. The Proclamation that was published in
the Gazette on 12-9-1114 gives the Survey Numbers distinctly as 545/32/11/1 633
and 532/3. Likewise in the sale notice Ext.
J. in the copy that is served on the
plaintiff the S. No. is shown as 545/32/11/1 while in the original it is
545/32/ A/1, but one cannot be sure whether A has been corrected or not."
The High Court however came to the conclusion that the description of the
property _in the relevant records was sufficient to identify the property
correctly and to give the requisite information 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 hypothecated 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 against was really survey No. 545/32/A/1 and 537/3. The High
Court further observed that it had not been shown in the case that the
mis-description of survey numbers has caused any Teal prejudice to the
plaintiff in the revenue sale concerned. The High Court observed "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/1 or that there is a
piece of land bearing the sub-division II/1 therein." The High Court
finally concluded "An error in the survey number of the property involved in
a proclamation of sale cannot be held to be such a vital defect as to compel us
to hold the sale to be one 'without a proclamation' at all and to declare the
sale void on that score, especially in view of the fact that, even according to
the plaintiff, nobody was misled by that error." 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 at.
The learned counsel referred to us a number
of cages to show that if there is no publication of proclamation then that
would vitiate the sale. The learned counsel for the respondent referred us to
the decision of this Court in sheodhyan Singh v. Muhammat Kuer.(1) Relying on
this case the learned counsel says that it (1)  2 S.C.R. 753.
634 was a case of mis description 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
for 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 could be clearly
established. This Court held that "as the khata number, 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 mis-description
of the plot in the final decree as well as in the sale certificate by the
omission of one zero from the 'Plot number ." In another passage,
referring to the decision of the Privy Council in Thakur Barmha 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 mis-description
that could be treated as a mere irregularity." It seems to us that it is
clear from the details mentioned in the proclamation, which we have mentioned
above, that the bidder, the owner and the auctioner had no doubt about the
identity of the property which was being sold. This was not a case of a
non-publication of the proclamation and.
therefore. the rulings relied on by the
learned counsel for the appellant have no application.
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
in view of the above conclusion it is not
necessary to rely on the point of res indicate made by the High Court.
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 proved.
(1) (1913) L.R. 41 I.A. 38, 635 The third and
fourth points arise out of the cross- objections filed by the
plaintiff-appellant before us. The High Court disposed of the cross-Objections
in the following words "The plaintiff has preferred a cross-objection
pleading that the revenue sale ought to have been declared void with regard to
the other items of properties included in the plaint schedule also. Admittedly
they were the subject-matter of the attachment and proclamation which
culminated in the revenue sale. No defect in the proceedings except the error
in -the Survey Numbers discussed above, to effect the validity of the revenue
sale has been brought to our notice. The cross- objection has no merits and has
only to be dismissed." It is not quite clear whether the third ground was
specifically taken 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. I of 1068) reads thus :
"59. All arrears of Public Revenue due
to Government other than land revenue, 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 himself liable under such agreement, and
also all sums declared by any other Regulation for the time being in force to
be recoverable as arrears of Public or Land Revenue, may be recovered under the
provisions of this Regulation." 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 public or land revenue. The
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 relied 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
hoc machinery set up by the Government would not vitiate, the sale, 636 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
In the result the appeal is allowed and the
judgment of the High Court set aside and the decree passed by the Trial Court
modified as follows :
"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 plaintiff do recover 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.