1. The respondent-plaintiff filed a suit for a declaration of his title to the suit property and for injunction restraining the defendant-appellant from interfering with his possession and enjoyment of the same. The plaintiff based his title to the suit property on a revenue sale held on 4-12-1961 in which he was the highest bidder and as a result of which a sale certificate had been issued in his favor. It is also the plaintiff’s case that in pursuance of the revenue sale possession of the property was actually handed over to him by the revenue sale possession of the property was actually handed over to him by the revenue authorities on 24-9-1965 as per Ex. P.3, that subsequent to such delivery of possession the defendant is attempting to trespass on the suit property and that therefore he is constrained to file the present suit for a declaration of title and for injunction.
2. The suit was resisted by the defendant contending that the revenue sale on which the plaintiff relies was invalid and a nullity, and that the possession of the property continued to be with her, as guardian of her minor daughter. Elavarasi, in whose favor, there has been a bequest of the suit property under Ex. B-2, executed by her father. She also stated that the validity of the will Ex. B-1 has been upheld by the Civil Court in another suit. It is also her case that in view of the revenue sale being a nullity in that neither the demand notice nor the attachment order was served on the minor, who is the owner of the property, she is entitled to resist the plaintiff’s attempt to get at the property without herself filing a suit as guardian of the minor to set aside the revenue sale.
3. The courts below have held that the revenue sale which is the basis of the plaintiff’s title, is regular and valid and that the same is not vitiated by reason of non-service of notice on the minor. Elavarasi and that the notice is found to have been duly served on the defaulter as per the records Ex. A.6. The courts below had invoked the presumption contained in Section 114. Illustration(e) of the Indian Evidence Act, for holding that the service of the demand notice and the attachment as well as notice of sale had been duly served.
4. The question in this second appeal is as to whether the decisions of the courts below upholding the revenue sale on the basis that there has been a proper service of notice on the defaulter are correct. Before dealing with the said question it is necessary to set out a few relevant facts. The property originally belonged to one Annamalai, who died on 18-4-1959, after executing a will dated 1-4-1959 bequeathing the suit property as well as others in favor of his minor daughter. Elavarasi. The will has been marked as Ex. B.2 in this case. Subsequently, the said minor, Elavarasi, filed a suit to establish her title to the suit property on the basis of the will Ex. B-2, against her uncle. Palani Mudaliar, and others and that suit ended in her favor. The result was that the will Ex. B-2 has been upheld by the court. Therefore, it is clear that on the date when the property was sold in revenue auction i.e., on 4-12-1961, the property belonged to the minor, Elavarasi. It is also clear that even on the date when the notice demanding the arrears of revenue is said to have been served, i.e., 30-7-1961. Annamalai was not alive and the property has been inherited earlier by Elavarasi on 18-4-1959. But, the record of the revenue sale proceedings Ex. A.6 proceeds on the basis that the defaulter. Annamalai, was alive on the date of the sale. A perusal of Exhibit A.6 shows that the personal service of the demand notice has been effected on 30-7-1961, but it does not say on whom the personal service was effected. Admittedly, on that date Annamalai was not alive and property was being enjoyed only by Elavarasi. Therefore, the proper person to be served on that date is the minor, Elavarasi, through her guardian. But the proceedings Ex. A.6 does not indicate on whom the service was effected. All the entries of Ex. A.6 right from the date of service of notice of demand till the relevant sale was completed, indicate that the department proceeded on the basis that Annamalai was alive. It does not appear that steps were taken to find out who has succeeded to Annamalai and to serve on that person.
5. The question is whether in these circumstances when the defaulter died long before the service of notice of demand, the presumption under Section 114. Illustration(e) could be invoked especially when it is not pretended by the revenue authorities in Ex. A.6 that an attempt was ever made to serve the guardian of the minor who has become the owner of the property. Since, on the materials it can definitely be stated that no personal service could have been effected on the defaulter, as by that time he has died, the presumption that the official act should be presumed to have been done regularly could not be invoked I am, therefore, of the view that the courts below were not right in invoking the presumptions contained in Section 114. Illustration(e) in this case where the personal service is said to have been made on a deceased person. I have to therefore, hold that the revenue sale in favor of the plaintiff has been effected without proper notice to the person who owned the property at the relevant time.
6. It is well established that a sale of a minor’s property in a revenue auction without notice to the guardian is invalid and nullity. In Marukkolanday Ammal v. Secretary of State for India. ILR 55 Mad 876 = (AIR 1932 Mad 664) a Division Bench of this High Court dealing with a similar situation and meeting the contentions put forward by the Government that it is open to the revenue authorities to choose any one of the modes prescribed and that one of the modes of affixture having been adopted the court should consider it as sufficient compliance of law expressed as follows :–
“But whether the modes of service are dependent or independent, we have no doubt that all of them equally contemplate that the defaulter for whose information the notice is intended is alive. The object of sending a notice, however it may be served is that the person notified may know the thing notified. How can a notice be intended for a dead man ?”
In that case, the court held that the fundamental requisite for giving the revenue authorities jurisdiction to conduct the sale under the Revenue Recovery Act is that there should be a defaulter living who can receive the notice and avoid the sale by payment of arrears and that a sale of land conducted after the death of a defaulter and without prescribed notice being given to any person is void. According to the learned Judges there is a clear distinction between the irregularities in publishing and conducting the sale and the essential preliminary steps which are necessary to give the revenue authorities jurisdiction to conduct the sale the omission of which makes the sale null and void and the plea of limitation based upon Section 59 of the Madras Act II of 1864 will apply in the former class of cases, but not in the latter. The above decision clearly lays down the principle that where a revenue sale is held when the defaulter is dead and without the notice of payment of arrears being served on any living person as defaulter the sale is a nullity.
7. In Avadainayagam v. Pitchiah Chettiar, Panchapagesa Sastri, J., also expresses the view that when a registered pattadar is dead there must be a service of notice on his heirs and legal representatives or on persons on whom the interest has devolved and that any land sold without service of notice on such persons is null and void and not binding on persons who have inherited the property from the dead man who was a defaulter.
8. It is, therefore, clear that the revenue sale conducted in this case on 4-12-1961, on the basis of which the plaintiff claims title, is null and void and the plaintiff cannot base his title thereon. The learned counsel for the plaintiff. however, contends that the sale certificates issued by the Revenue authorities as also the certificates of possession given by them under Ex. A.3 are conclusive and that it is not open to a Civil Court to go into the question as to the validity of the revenue sale or as to whether possession in fact passed to the purchaser. The learned counsel also contends that the appellant is a stranger who has no claim over the property, that it is not open to her to resist his claim, and that if she wanted she could have applied under Section 37-A for setting aside the sale by depositing the arrears of revenue within the time stipulated thereunder or could have filed a suit to set aside the sale within the period prescribed under Section 59 of the Act. But, the appellant contends that she being in possession of the property as guardian of the minor, she can always resist the attempt of the respondent to get at the property without herself filing a suit to set aside the revenue sale and that she as a person in possession can always seek to sustain the same by resisting the plaintiff claim of title based on an invalid revenue sale.
9. It is seen that the trial Court has given a somewhat inconsistent finding on the question of possession. Under issue No. 6 it says that the defendant is in possession of the plaint schedule property as guardian for the minor, Elavarasi. Under issue No. 4, it holds that the plaintiffs’ case that there was a trespass by the defendant has not been established and that the attempted trespass is not proved by the plaintiff. The above findings seem to indicate that the defendant was in possession of the suit property as guardian of the minor on the date of the suit. Plaintiff’s case of trespass having been disbelieved by the trial Court, it should be taken that the defendant should have continued in possession from the date of death of Annamalai. But, it is seen that the trial Court has given the finding under issue No. 2 as to whether the plaintiff took physical possession of the plaint schedule property pursuant to the revenue sale that the physical possession of the property could have been taken by the plaintiff as pattas had been transferred in his name. As a matter of fact there is no discussion worth mentioning on this question and the finding is based on the fact that the patta has been transferred in the name of the plaintiff subsequent to the court auction purchase.
Presumably, the trial Court proceeded on the basis that the certificate of delivery-Ex. A.3 was conclusive and a presumption of possession could be based on that. But in view of the finding given by the trial Court itself on issue Nos. 4 and 6, that the defendant has been in possession of the property, as guardian of the minor and that the alleged trespass set up by the plaintiff has not been proved the trial Court is not entitled to presume that physical possession of the property was given. As a matter of fact except Ex. A.3 the certificate of delivery of possession there is no acceptable evidence to prove the actual delivery of possession, said to have taken place. It is therefore, to be taken that the defendant continues to be in possession of the property since the death of her husband. Annamalai and that the plaintiff has taken only a symbolic delivery under Ex. A.3. In view of the fact that the defendant has been in possession of the property she is entitled to resist the plaintiff’s claim without actually filing a suit to set aside the revenue sale under Section 59 of the Act. The other contention of the learned counsel that the petitioner has not invoked the remedy provided under Section 37-A is equally without substance as the defendant as a person in possession can always sustain the same by raising the question of validity of the sale as a defense.
10. In my view, the decisions of the courts below cannot be held to be correct. The second appeal is therefore, allowed. There will be no order as to costs. No leave.
11. Appeal allowed.