Research › Browse › Judgment

Kerala High Court · body

1952 DIGILAW 14 (KER)

Narayanari v. Kuttan Pillai

1952-02-21

GANGADHARA MENON, VITHAYATHIL

body1952
Judgment :- 1. The decree-holder in O.S. No. 6 of 1120 of the District Munsiff's Court of Adoor is the Revision Petitioner. The decree is for redemption of a mortgage. During the pendency of the suit item No. 5 of the plaint schedule properties was sold in revenue auction for arrears of jenmikarom due on that property and was purchased by the counter-petitioner. He obtained delivery of possession of the property as per the revenue sale. When the decree holder applied for delivery of this property the counter petitioner obstructed and the court below allowed the obstruction petition. The Revision is from that order. 2. The only question that arises for consideration in this revision is whether the revenue sale is affected by lis pendens by reason of the pendency of the suit in redemption. In 1949 T.L.R. 36 (Janaki Amma v. Dewan of Travancore) a Division Bench of the Travancore High Court held that a revenue sale of property which was the subject matter of a partition suit was vitiated by lis pendens. That was a suit for setting aside the revenue sale which took place during the pendency of the suit for partition. It was held that the revenue sale was not binding on the tarawad as the karanavan of the tarawad was not a party to the revenue proceedings. It was also held that the revenue sale was vitiated by lis pendens. This decision was however not followed by this court in 1950 K.L.T. 322 (Eravi Krishna Karthavu v. Kumaraswami Nampoothiripad) which is a decision by a Single Judge. Both these decisions were considered by us in 1951 K.L.T. 660 (Gopalan Nair v. Barathi Amma). We held that in case that the principle underlying S. 52 of the Transfer of Property Act relating to lis pendens does not apply to cases of revenue sale for arrears of tax due on the property. That case was decided on the 4th September 1951. Another Division Bench of this Court considered the same question in the case reported in 1952 K.L.T. 30 (Karunakaran Pillai v. Kesava Pillai) which was decided on the 6th September 1951. In that case also it was held that the application of the doctrine of lis pendens will not extend to a revenue sale held during the pendency of a suit. In that case also it was held that the application of the doctrine of lis pendens will not extend to a revenue sale held during the pendency of a suit. Since the question has been elaborately discussed in the above cases we do not think it necessary to discuss it again in this revision. 3. It was however argued on behalf of the Revision Petitioner that the revenue sale in this case was not for arrears of tax due on the property but was for arrears of jenmikarom. Under S. 39 of the Travancore Revenue Recovery Act (Act I of 1068) all lands brought to sale on account of arrears of revenue due thereon shall be sold free of all encumbrances. It is argued that this provision will not apply to sale of lands under the Revenue Recovery Act for arrears of jenmikarom. It is therefore argued that the principle laid down in the decision in 1950 K.L.T. 322,1951 K.L.T. 660 and 1952 K.L.T. 30 does not apply to the facts of this case. 4. In this case we are not concerned with the question whether a sale of property under the Revenue Recovery Act for jenmikarom due on the property will extinguish all encumbrances on the property. The decree-holder has no case that he has a charge on the property and that it was not extinguished by the revenue sale. He was the owner of the equity of redemption of the property and his suit was for redeeming a mortgage. The question for consideration is whether the revenue sale extinguished his title to the property. What is laid down in S. 52 of the Transfer of Property Act is that during the pendency of a suit in which any right to immovable property is in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding, so as to affect the right of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may enforce. The section only prohibits a party to a suit or proceeding from dealing with the property so as to affect the rights of the other party thereto. The section only prohibits a party to a suit or proceeding from dealing with the property so as to affect the rights of the other party thereto. In this case it cannot be said that a party to the suit transferred or otherwise dealt with the property which was the subject matter of the suit to the prejudice of any other party. In 1952 KLT 30 cited above this court held that the inhibition of S.52 "is only against any of the litigant parties dealing with the property forming the subject of the litigation so as to affect the rights of any other party thereto under any decree or order which may be made therein." 5. It is true that the principle underlying S.52 of the Transfer of Property Act is applicable to involuntary sales also, but it does not apply to revenue sales for arrears of land revenue or other dues which constitute as first charge on the property. Under S.9 of the Travancore Jenmi and Kudiyan Act as amended by Act XII of 1108 jenmikarom of a holding is a first charge on the holding subject to the priority of the rights of the State. S.26A(4) provides that jenmikarom shall be recovered as if it were an arrear of public revenue due to Government and that the provisions of the Revenue Recovery Act shall mutatis mutandis apply to the proceedings. Apart from the question whether S. 39 of the Revenue Recovery Act will apply to a sale of land for arrears of jenmikarom due thereon, we have no doubt that such a sale will not come within the purview of S.52 of the Transfer of Property Act. In Ponnuswami Chettiar v. Ellisseri Obul Reddi (A.I.R. 1939 Mad. 256) it was held by the Madras High Court that a revenue sale held under the Madras Estates Land Act for arrears of rent due from the ryot to the landholder was not affected by a pending suit on a mortgage executed by the ryot. In Ponnuswami Chettiar v. Ellisseri Obul Reddi (A.I.R. 1939 Mad. 256) it was held by the Madras High Court that a revenue sale held under the Madras Estates Land Act for arrears of rent due from the ryot to the landholder was not affected by a pending suit on a mortgage executed by the ryot. This decision is referred to in 1952 K.L.T. 30 and the following observation of Wardsworth, J. repelling the contention that the sale was vitiated by lis pendens is quoted with approval in that case: "This contention overlooks the fact that the sale by the Collector was in fact a sale held to enforce the paramount right of the landholder to his rent, which under S.S, Estates Land Act, is a first charge on the land I have no hesitation in holding that the sale by the Collector for arrears of rent of the land on which those arrears were due to the landholder is not affected by a pending suit on a mortgage executed by the ryot who is in default." Reference may also be made to an earlier decision of the Madras High Court reported in I.L.R. 5 Mad. 371 (Muniswami v. Dakshina Murthi). That case also related to a sale under the Revenue Recovery Act for arrears of rent due to the landholder from the ryot. The sale was conducted during the pendency of a suit on a hypothecation bond executed by the ryot. It was held that the revenue sale was not affected by the doctrine of lis pendens. 6. We therefore hold that the revenue sale held in this case for arrears of jenmikarom due on the property during the pendency of the redemption suit is not vitiated by lis pendens. The order of the court below is confirmed and this revision petition is dismissed with costs. Dismissed.