JUDGMENT
Kernan, J.
1. Plaintiff bought the saleable interest of Vaira Pillai in the lands in question at an auction sale held on the 23rd of October 1878 under the powers contained in Act VIII of 1865 for arrears of rent due to the landholder, the mittadar.
2. Previous to that sale Suit No. 60 of 1878 had been instituted by defendant’s father, Kuppaya Chetti, against Nagamuthu Pillai and others, praying to have the same lands sold to discharge a mortgage of theirs granted by Nagamuthu Pillai on the 17th of December 1865 for Rs. 850-12-0. Vaira Pillai was not a party to that suit, and it is found that Nagamuthu had, some years prior to 1878, sold his interest to Vaira Pillai.
3. Plaintiff was in possession as purchaser under the sale since 31st October 1878, being the date of the certificate issued to him under the Act, and up to the filing of this suit. In Suit 60 of 1878 Kuppaya obtained a decree against the defendants in that suit for sale of the lands to pay the mortgage. Plaintiff objected to the sale, but his objection was, on the 24th September 1879, rejected, and thereupon this suit has been brought for a declaration of title. Kuppaya died and the defendants are his sons.
4. The defendants contend, first, that the sale to the plaintiff is subject to their rights as mortgagees, because the sale was made pending the Suit No. 60 of 1878; and, second, that the interest sold to plaintiff was only the equity of redemption of the mortgagor vested in Vaira Pillai, and not the full interest of the pattadar, as the defendants were not parties to the sale.
5. The defence of lis pendens is bad, because, first Vaira Pillai, whose saleable interest was purchased by plaintiff, was not a party to the Suit 60 of 1878; and second, because even if Vaira Pillai was a party to the suit, the plaintiff did not purchase from him.
6. The doctrine of lis pendens is that he who purchases, during the pendency of the suit, any part of the subject-matter of the suit is held bound by the decree that may be made in that suit against the person from whom he derives title. (Story, s. 406, and cases there. Sugden, c. 23, s. 28.)
7. The plaintiff does not derive his title from Vaira Pillai. He derives it by virtue of the exercise by the mittadar of the statutable power of sale. The rule of lis pendens does not affect the rights of persons not parties to the suit who have rights paramount to the interest of both plaintiff and defendant in the suit. The interest of both parties to the Suit 60 of 1878 was defeasible by the exercise by the landholder of the statutable power of sale. The doctrine of lis pendens applies only to alienations by conveyance or otherwise which are inconsistent with the rights that may be established by the decree or suit. The right of the landholder to sell and get paid his rent is not inconsistent with the right of the mortgagor or mortgagee, as both take subject to payment of the rent and to the legal incidents attached by law for non-payment of the rent. (Moore v. McNamara 2 B. & B. 187.
8. As to the second ground of defence, Act VIII of 1865, Section 38, provides that, when arrears are due, and when the defaulter may have a saleable interest in the land on which the arrear is due, it shall be lawful for the landholder to sell such interest in satisfaction of the arrear and interest.
9. Section 39 provides that notice shall be given to the defaulter and be served on him as there prescribed; that, if the arrears be not paid in one month after service, his interest in the land shall he sold, and that a copy of such notice shall be sent to the Collector; and Section 40 provides that, if no appeal be made to the Collector against the notice, the party entitled to the arrears shall be entitled to take measures for sale, and that the sale shall be conducted under the rules laid down for the sale of property distrained for arrears of rent. The rules are contained in Section 33, which provides that the sale of property shall be by public auction to the highest bidder; and, if the property sell for more than the arrears, the overplus shall be paid to the defaulter. The Act contemplates the sale of the interest created by the letting vested in the pattadar, and does not appear to provide for the claim of, or notice to, any incumbrancer on that interest. The Act II of 1864, authorizing sales of land for arrears of Government revenue, has many provisions–proclamation and notification of place and time of sale one month before sale, and that all lands brought to sale for arrears of revenue shall be sold free from incumbrances. That Act does not say expressly that the lands sold shall be held free from incumbrances created before the sale, though, probably, such is the construction of that Act. There is no such provision in the Act VIII of 1865, and it is therefore argued that a sale under the latter Act is not free from incumbrances. The interests to be sold under the Act of 1865 are much less than those sold under the Act of 1864. The interests sold under the Act of 1865 are directed to be sold under the rules applicable to moveable property distrained for arrears. That kind of property cannot be sold subject to any incumbrances, and is therefore sold necessarily free from incumbrances, although not expressly so stated in the Act.
10. The same amount of publicity and notification of sale is not directed by the Act of 1865 as in the Act of 1864, but notice is to be given under Section 181 in the village to which the lands belong, specifying the property to be sold and the day of sale. Under Section 222, if tender of arrears and costs is made, the sale is to be stopped.
11. The arrears of rent are a first charge on the land, and the Legislature has empowered the landholder to sell the interest of the pattadar to discharge the arrears of rent without providing for any incumbrancer on the interest of the pattadar or notice to him. The sale, therefore, is prima facie valid as against the mortgagee. This construction of the statute may possibly work injustice to a mortgagee not in possession. But, on the other hand, if a landholder had to seek out whether there were any and what incumbrancers affecting the interest of the tenant or pattadar, and if he was bound to give them all notice, or if, without notice, his sale was not to be valid, the remedy by sale intended by the statute would be in most oases frustrated. There are very few cases of pattadars where there is not some family claim or charge or right to a share. Hypothecations and mortgages of land not compulsorily registrable exist also to a large extent.
12. If this construction we now put on the Act be not correct, the mortgagee, when the purchase money of the purchaser was applied to discharge the arrears, might insist on taking the lands from the purchaser, whose money had been applied to pay the same rent which the mortgagee took subject to and was bound to pay if he wished to preserve his interest as mortgagee. This would be unjust. The mortgagee might either have paid the arrears and stopped the sale, or he might have purchased at the sale. The principle of this judgment was already decided in S.A. No. 595 of 1879.
13. The appeal should be dismissed with costs.
Muttusami Ayyar, J.
14. The lands in suit are held on an ordinary patta under the mittadar of Salem. Prior to 1865 one Nagamuthu Filial had been the pattadar. On the 17th December 1865 he hypothecated the lands to defendants’ father, but afterwards he sold the same to one Vaira Pillai, who obtained a patta in his own name from the mittadar in 1875. Whilst he was in possession he allowed the rent due by him to fall in arrear, and, at the instance of the mittadar, the lands were put up to sale under Act VIII of 1865. The plaintiff purchased them on the 23rd October 1878 at the auction sale, and he was placed, in possession; meanwhile, defendants’ father had instituted Suit 60 of 1878 upon the hypothecation bond in his favour. He obtained a decree for the sale of the hypothecated property in December 1878, and, in [375] execution of the same, attached the lands in dispute. Plaintiff resisted the attachment and claimed the lands by right of purchase, but, as his claim was disallowed, he brought this suit to obtain a declaration that the sale in his favour under Act VIII of 1865 was free of the prior hypothecation in favour of the defendants’ father. But defendants contended that the purchase was subject to the hypothecation, as the hypothecation was of a prior date, and as the purchase was pendente lite. Both the Lower Courts held that the purchase was not subject to the hypothecation and decreed the claim; and the question for decision in this second appeal is whether the hypothecation should prevail either on the ground that it was of a prior date or that the purchase was pendente lite. The tenancy of an ordinary pattadar only confers upon him a right of occupancy until default is made in the payment of rent, and until his tenancy is determined, upon such default under Act VIII of 1865; and Nagamuthu Pillai’s interest, therefore, in the lands in dispute and that of Vaira Pillai who took under him was nothing more than a right to hold them as tenant for a conditional term. Defendant’s father, who accepted this interest in hypothecation, acquired against the mittadar no other right than that possessed by Nagamuthu or Vaira Pillai, and was subject to the same conditions and obligations. By the sale, therefore, for arrears of rent the conditional term expired, and the tenant’s right originally accepted as security having thus ceased, defendants are not entitled to recover their debt by the sale of the lands. It is then urged that the defendants had no notice of the sale, but the mittadar was under no obligation to give them notice, and his statutory power was burthened with no such obligation. Their father had accepted as security lands held on a conditional tenure, and it was for them to see that of lis pendens, it would suffice to observe that it could not operate to add to the interest created by the contract of hypothecation. I am, therefore, of opinion that this appeal fails, and that it must be dismissed with costs.
1 Order for sale of distress.
[Section 18: If the tenant does not appeal against the distraint by filing a summary suit before the Collector within thirty days from the data of such distraint, or if a suit is filed and decided against him, the destrainer shall, within fifteen days, apply to the Collector for an order directing the Public Officer empowered by Act VII of 1839, to cause the sale of the distrained property, who, on receiving such order, shall fix up in some conspicuous place in the village a notice specifying the property to be sold, and the time and place which he has fixed on for its sale. He shall also cause proclamation of the intended sale to be made, by beat of drum, in the village to which the lands belong on which the arrear has accrued. In fixing the day of sale, not less than seven days must be allowed from the time of the public notice, and not less than thirty days from the date of distraint.
2 On tender of arrear and expenses, prior to the day of sale, distress to be withdrawn.
[Section 22: When a defaulter may tender payment of the arrear demanded after his property may have been distrained, and prior to the day fixed for sale, together with payment of interest, batta, and all necessary expenses attending distress, the distrainer shall receive the amount immediately upon the same being tendered, and shall forthwith release the property.}
