Patna High Court
Smith vs Gokul Chandra Chakravarti on 4 August, 1931
Equivalent citations: 139IND. CAS.74, AIR 1932 PATNA 234
JUDGMENT Mohamad Noor, J.
1. This appeal arises out of an application to set aside a sale in execution of a simple money decree obtained by the respondents from the Court of the Subordinate Judge of Dhanbad against one Mr. C.J. Smith. The decree was brought on transfer to the Court of the Subordinate Judge of Ranchi and the decree holders attached and got sold a piece of land in Hinu which is described in the sale proclamation as follows:
Property of the judgment-debtor situated in Mauzas Hinu, Hathu, Hundru and Kalyanpur within Barkagaon Government khas mahal which is one plot of 144 acres and 8 rods and is surrounded by wire and is named as Chalic Saheb ka hata with all the land together with one pacca two-storied house situated therein with a pacca well, courtyard and open space in front and back of the land which is the purchased right of the judgment-debtor from the Free School and is in possession of the judgment-debtor without the partnership of anybody and which is valued at Rs. 20,000.
2. The sale was held on the 16th of March, 1928, and the property was purchased by the decree-holders for Rs. 20,000. On the 12th of April the judgment-debtor Mr. C. J Smith, filed an application for setting aside the sale on the ground that on account of material irregularity in publishing and conducting the sale the property worth about two lakhs of rupees was sold for an inadequate price of Rs. 20.000. Mr. Smith died on the 25th of July, 1928. On the 11th of October 1928 his son Mr. C.T.M. Smith and his widow Mrs. D.M. Smith applied for substitution of their names in place of the deceased applicant and proceeded with the case. The learned Subordinate Judge rejected the application on the ground that the son and the widow of the deceased Mr. C.J. Smith were not entitled to continue the proceeding as trey had not obtained Letters of Administration to the estate of the deceased are required by Section 212 of the Indian Succession Act; and, further held that there was no material irregularity in conducting the sale: that notices were properly served and in the circumstances the price fetched (Rs. 20,000) war adequate.
3. The first question for consideration is, whether the son and the widow of the deceased Mr. C.J. Smith were entitled to prosecute the application for setting aside the sale. Section 212 of the Indian Succession Act enacts that no right to any part of the property of a person who has died intestates can be established in any Court of Justice unless Letters of Administration have first been granted by a court of competent jurisdiction.
4. The appellants contended before the learned Subordinate Judge that Mr. Smith was an Indian Christian and therefore, came within the exception of Section 212. I am however, of opinion that Mr. Smith was not an Indian Christian. He was described as a European in the decree under execution. The petitioners' witness Panchugo pal Roy describes him as an Indian Christian but the only ground that the witness gives in support of his description is that Mr. Smith was born at Murshidabad. Further questioned, the witness was unable to say whether his ancestors were or were not Europeans. An 'Indian Christian' as defined in the Act is--
a native of India who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion.
There is nothing to show that Mr. Smith claimed himself to be of unmixed Asiatic descant. The appellants have not given their own evidence. I am, therefore, of opinion that at least for the purposes of this case Mr. Smith must be treated not to be an Indian Christian. Nevertheless, in my opinion, Section 212 is not applicable here. The case were started by Mr. Smith himself in his lifetime. What his son and widow wanted was to continue the proceeding. It cannot be said that they wanted to establish their right to any part of the property of Mr. Smith Establishing a light to the property of a deceased person is one thing and trying to keep a property within his estate is another. The effect of the sale was that the estate of Mr. Smith was deprived of the property sold. Mr. Smith's application was in effect to bring the property back to the estate by having the sale set aside. The eon and the widow of the deceased want to continue that application with the sole object of residing to the estate of Mr. Smith a property which has gone away. In this application they are making no claims in their favour. Once the property is restored to the estate of the deceased it will be a quite different question that is entitled to succeed to that property. Reference may be made to the decision in Brij Kishore Lal v. Pratap Narain 51 Ind. Cas. 359 : 4 Pat. L.J. 360 : (1919) Pat. 203 where it was held that the reversioner in a Hindu widow's estate is entitled to apply under Order XXI, Rule 90, of the Code of Civil Procedure, 1908, to set aside a sale of immoveable property on account of fraud or irregularity in publishing or conducting the sale.
It is obvious that if a reversioner applies for setting aside the sale held in execution of a decree against a widow, he is not trying to establish his right to the property itself which he cannot do during the lifetime of the widow. In an application for setting aside a sale the applicants do not want to establish their right to the property itself. Sir Sultan Ahmed, for the respondents, refers us to the decision in Sukhnandan v. Renniek 4 A. 192 : A.W.M. 1882 3. It was held in that case that where persons who did not legally represent the estate of the deceased intestate were sued, as his representatives for a debt due by him and in execution of the decree obtained therein, property of the deceased was attached and brought to sale, such proceedings, being inoperative as against the estate of the deceased, could not confer any title upon the decree-holders in respect of the proceeds of such sale, as against a person who has obtained Letters of Administration to the estate of the deceased, and a suit by the decree-holders for the recovery of such sale proceeds paid over to the legally constituted administrator of the estate is not maintainable.
In my opinion the facts of that case have no application to the case before us. There the question was who represented the estate of the deceased. Here the question is, whether the deceased's son and widow could continue the proceedings started by the deceased himself. On these grounds I am of opinion that the son and the widow of the deceased were entitled to continue the proceedings.
5. Now I come to the merits of the case, The irregularity complained of by the appellants are non-service of notice under Order XXI, Rule 69, of the Code of Civil Procedure and misdescription of property in the sale proclamation, namely, the mention of an area of 141 acres and 8 rods, though in fact the area is 440 acres, and the mention of a grossly inadequate value, i.e. Rs. 20,000 for a property worth about two lakhs of rupees.
6. It appears that the notice under Order XXI Rule 66 of the Code of Civil Procedure, was served at the colliery office of the judgment-debtor at Dhanbad in January, 1928. It was served by hanging a copy at the outer door of the office. Hem Chandra Sen, a medical practitioner (witness No. 1 for the appellants) says that Mr. Smith was lying ill at Suria in the District of Hazaribagh in January, 1928. Witness No. 2 for the appellants, Mr. Loieean, deposes that he was the only person authorized to receive notices on behalf of Mr. Smith and that Mr. Smith was ill in January, 1929, and since then he did not go to the colliery at Dhanbad. I have no reason to disbelieve these witnesses and in my opinion the service of notice was not regular. I do not, however, attach much importance to this as on 14th of March, Mr. Smith entered appearance and raked objection on the question of valuation. The learned Subordinate Judge overruled the objection on the merits.
7. As to the misdescription of the property in the sale proclamation, there cannot be two opinions and the contention of the appellants is well-founded. The area mentioned in the Bale proclamation is 144 acres 8 rods. Mr. Loisean, Witness No. 2 for the appellants describes the area to be 440 acres. We sent for the original title deed of Mr., Smith which we were told was with the Chota Nagpur Banking Association, The bank has sent a copy of the title deed with the copy of a letter of Mr. Smith to the Managing Director of the Bank under which the bank claims an equitable mortgage for Rs. 1,50,000 over the property sold, The correctness of the copies is not disputed. It appears that the land was originally acquired by the Government for the Governors of the Free School of Calcutta as they wanted to shift the school from Calcutta to Ranchi. The idea was afterwards abandoned; the Governors of the Free School and the Government in 1915 jointly transferred the land to Mr. Smith for Rs. 50,000. The actual area mentioned in the title deed is 444 acres, 3 rods and 34 poles. There is no question, therefore, that the area and the value were very grossly understated in the sale proclamation and therefore, one should not be surprised if the price fetched at the sale was only Rs. 20,000. I am bound to hold that by the mis-statement of the area and the value of the property there has been irregularity and one can safely infer that the intending bidders were misled, The learned Subordinate Judge says that the property is subject to an equitable mortgage to the-extent of Rs. 1,50,000 in favour of the Chota Nagpur Banking Association, if so, the non-mention of this equitable mortgage in the sale proclamation was another misdescription. It is, however, not clear whether the property was sold subject to any equitable mortgage. On the other hand I find from the execution proceedings (Order 5, dated the 14th March, 1928) that the learned Subordinate Judge observed, that the judgment-debtor did not produce any document to show that the property was under mortgage and that the fact of the existence of any encumbrance on the property was denied in the decree holders verified petition. It is clear, therefore, that Rs, 20,000 was fixed as the value of the property ignoring the mortgage, if any; and, obviously, this was a very inadequate price. The judgment-debtor purchased the property for Rs. 50,000 and he constructed; buildings and a well and fenced the area; The value must have considerably increased. The Chota Nagpur Bank claims to have advanced Rs. 1,50,000 on the security of this property. The judgment-debtor sustained substantial injury by the misdescription of the property in the sale proclamation. On the whole, therefore, I am of opinion that there has been material irregularity in publishing the sale and in consequence thereof the property has been sold for a grossly inadequate price.
8. I would, therefore, set aside the sale and direct that the property be re-sold after terms of the sale proclamation are settled and fresh sale proclamation is issued. If the learned Subordinate Judge be satisfied on such enquiry as he thinks fit to institute, that the property is subject to any mortgage legally enforceable, he will direct the fact to be mentioned in the sale proclamation.
9. The appeal is allowed with costs.
Macpherson, J.
10. I agree.