RAGHAVAN v. BHARGAVAN — 1977 DIGILAW 151 (KER)

Judgment :- 1. The revision petitioner is the 6th defendant in O. S.195/58 on the file of the Munsiff Court, Kottarakkara. A decree debt is alleged to come within the purview of Act 31 of 1958 and Act 11 of 1970. The decree-holder, the father of respondents 1 and 2 and brother of 3rd respondent, in execution of the above decree brought properties for sale and purchased in court auction on 20-6-1962 and took delivery through court on 4 41963. Attempts made by the debtors to avoid the sale failed. 2. When Act 11 of 1970 came into force the petitioner filed E. A. 620/70 to set aside the sale and for recovery of property under S.20(1) of the Act with the decree-holder and respondents 1 to 3 on the party array. The decree-holder auction purchaser died during the pendency of the petition. The decree-holder and respondents 1 to 3 had contended that the revision petitioner's petition is not maintainable, that the settlement deeds Exs-B1 and B3 executed by the decree-hol-derjin favour of the respondents 1 and 2 are bonafide transactions and the sale cannot be set aside. The execution court held that the petition is maintainable, and further held that the word "alienation" in S.20(6) of the Act will include a Gift or Will, and therefore respondents are entitled to protection under S.20(6) and therefore dismissed the petition. An appeal filed in the matter was dismissed by the Subordinate Judge of Kottarakkara on 5 41976. It is under these circumstances that the petitioner has approached this court under S.115 of C.P.C. 3. It is contended before me by Sri Vasudevan, learned counsel for the petitioner that the assumption of the courts below that the settlement deeds Exs-BI and B3 are bonafide is wrong and unsustainable. The court sale during the pendency of Act 31 of 1958, prior and subsequent attempts made by the judgment debtors to avoid the sale all these should have been taken into consideration to determine the question of bonafides of Exs-BI and B3. The court sale during the pendency of Act 31 of 1958, prior and subsequent attempts made by the judgment debtors to avoid the sale all these should have been taken into consideration to determine the question of bonafides of Exs-BI and B3. The records relating to the original suit No. 38 of 1964 and decree passed therein on the file of the Subordinate Judges court, Kottarakkara, a suit between the father of the respondents 1 and 2 and the 3rd respondent, produced before the lower appellate court, should have been taken into consideration for appreciating the circumstances under which Exs-BI and B3 happened to be executed. It is also contended that the settlement deeds have not come into effect and they are bad for want of bonafides and consideration. It is the further case of the petitioner that the reliance placed by the execution court on the Law Lexicon in coming to the conclusion that the word "alienation" will include a demise by gift or will is unsustainable. It is strongly urged by Sri Vasudevan, learned counsel for the petitioner that the court below erred in bringing Exs-BI and B3 within the ambit of the word "alienation" and the courts below ought to have found that respondents 1 and 2 are not bonafide alienees as per S.20 (6) of Act 11 of 1970. 4. The relevant provision, viz., S 20 (6) reads: "(6) An order under sub-section (1) or sub-section (2) or sub-section (3) shall not be deemed to affect the rights of bonafide alienees of the auction-purchaser deriving rights before the date of publication of the Kerala Agriculturists' Debt Relief Bill, 1968, in the gazette " It would be relevant to quote in extenso sub-sections (1), (2) and (3) of S.20 which reads: "(1) Where any immovable property in which an agriculturist had an interest has been sold in execution of any decree for recovery of a debt or sold under the provisions of the Revenue Recovery Act for the time being in force for the recovery of a debt due to a banking company in liquidation (a) on or after the 1st day of November, 1956; or (b) before the 1st day of November, 1956. but the possession of said property has not actually passed before the 20th day of November, 1957, from the judgment-debtor to the purchaser, and the decree-holder is the purchaser, then, notwithstanding anything in the Limitation Act. 1963 or in the Code of Civil Procedure. 1908 or in the Revenue Recovery Act for the time being in force, and notwithstanding that the sale has been confirmed, such judgment-debtor or the legal representative of such judgment-debtor may, deposit one-half of the purchase money together with costs of execution where such costs were not included in the purchase money, and apply to the court within six months from the date of such commencement to set aside the sale of the property, and the court shall, if satisfied that the applicant is an agriculturist, order the sale to be set aside, and the court shall further order that the balance of the purchase money shall be paid in ten equal half-yeatly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment at six per cent per annum, the first instalment being payable within a period of six months from the date of the order of the court. (2) Where any immovable property in which an agriculturist had an interest has been sold in execution of any decree for arrears of rent or michavaram (a) during the period commencing on the Ist day of November 1956 and ending with the 30th day of January, 1961 and the possession of the said property has actually passed on or before the Ist day of April, 1964, from the judgment-debtor to the purchaser; or (b) before the 1st day of November. 1956, and the possession of the said property has actually passed during the period commencing on the 20th day of November, 1957 and ending with the 1st day of April, 1964 from the judgment debtor to the purchaser then notwithstanding anything contained in the Limitation Act. 1956, and the possession of the said property has actually passed during the period commencing on the 20th day of November, 1957 and ending with the 1st day of April, 1964 from the judgment debtor to the purchaser then notwithstanding anything contained in the Limitation Act. 1963 or in the Code of Civil procedure, 1908 and notwithstanding that the sale has been confirmed, such judgment-debtor or the legal representative of such judgment debtor may, deposit one-half of the purchase money together with the costs of execution, where such costs were not included in the purchase money, and apply to the court within 9 months from the date of such commencement to set aside the sale of the property, and the court shall, if satisfied that the applicant is an agriculturist order the sale to be set aside, and the court shall further order that the balance of the purchase money shall be paid in ten equal half-yearly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment at six per cent per annum, the first instalment being payable within a period of 6 months from the date of the order of the court. (3) Where any immovable property in which an agriculturist had an interest has been sold in execution of any decree for the recovery of a debt or sold under the provisions of the Revenue Recovery Act for the time being in force for the recovery of a debt due to a banking company in liquidation, on or after the 14th day of July, 1958 and the decree holder is not the purchaser, then, notwithstanding anything in the Limitation Act, 1963 or in the Code of Civil procedure, 1908 or in the Revenue Recovery Act for the time being in force, and notwithstanding that the sale has been confirmed such judgment-debtor or the legal representative of such judgment-debtor may deposit the purchase money and apply to the court within six months from the date of such commencement to set aside the sale of the property, and the court shall, if satisfied that the applicant is an agriculturist, order the sale to be set aside." 5. As Stroud in his Judicial Dictionary of Words and Phrases says quoting Termes de Ia Ley "alienation is as much to say, as to make a thing another mans; or to alter or put the possession of lands, or other things, from one man to another'. If that is so I do not understand why a gift cannot be an alienation. Alienation is transferring property to another; it implies a transaction by which property is given to another person. In Javer v. Hodibhai (17 Bom. L.R. 1181) the word alienation as used in S.3 of the Bhagdari Act, was held to include a transfer by testamentary devise. Therefore, a gift of a property is alienation of property. 6. I am not able to understand how the decision cited by the learned counsel for the petitioner in Vasudev v. Pranlal (AIR. 1974 SC. 1728) and Pitamber Govindan v. Gafar (AIR. 1972 Bom. 43) go against this construction. In fact in the second decision 1972 Bom 43 the court refers to an earlier decision of the Bombay High court in Pandappa v Murteppa (AIR. 1930 Bom. 534) where it is stated that alienation would include a devise by gift if the effect of it is to make the property another man's by means of a bequest. In that case (AIR 1930 Bom. 534) the question was whether a devise by will was included in the word "alienation in the Bombay Hereditary Offices Act, 1874. Justice Patkar observed as follows: "The question therefore in the case is whether the word "alienate" excludes a devise by will. It is urged on behalf of the appellant that the word "alienate" means to transfer by sale. It is conceded on behalf of the appellant that the watandar can make a gift of the watan property to a watandar of the same watan. If a watandar can alienate the property by gift inter vivos, he would presumably have the right to alienate by will is favour of a watandar of the same watan. The word "alienation", according to Stroud's Judicial Dictionary, vol. 1, p. 65 means "to make a thing another man's". "Alienate", according to Wharton's Law Lexicon, means "to transfer property." Alienation would, therefore, include a devise by gift if the effect of it is to make the property another man's by means of a bequest " 7. The word "alienation", according to Stroud's Judicial Dictionary, vol. 1, p. 65 means "to make a thing another man's". "Alienate", according to Wharton's Law Lexicon, means "to transfer property." Alienation would, therefore, include a devise by gift if the effect of it is to make the property another man's by means of a bequest " 7. Reservation of a life interest will not detract from the fact that the gift is alienation. The rights of bonafide alienees referred to in S.20 (6) are rights of such alienees under the transaction. It is very difficult also to make out from the tacts and circumstances of the case that the transactions concerned were not bonafide. It is for the petitioner to have established by positive evidence that the transactions were not bonafide, if they were so. He has failed to establish the same. 8. Therefore, I find no error in the orders of the courts below. I dismiss the CRP.; but I make no order as to costs. Dismissed.