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1 - 8 of 8 (1.07 seconds)Rani Chandra Kunwar vs Chaudhuri Narpat Singh And Raja Makund ... on 14 December, 1906
Narpat Singh: Rani Chandra Kunwar v. Rajah Makund Singh(1),
where this statement of the law was adopted. No exception
can be taken to this proposition. But before it can be
invoked, it must be shown that there is a clear and
unambiguous statement by the opponent, such as will be
conclusive unless explained. It has been already pointed
out that the tenor of the statements made by Abdul Huq, his
legal representatives and the plaintiff was to suggest that
the proceedings in 0. S. No. 100 of 1919-20 were fraudulent
and not collusive in character. Those statements would not,
in our opinion, be sufficient, without more, to sustain a
finding that the proceedings were collusive.
But assuming that they are sufficient to shift the burden on
to the plaintiff of proving that the decree and sale in 0.
S. No. 100 of 1919-20 were not collusive, the evidence
adduced by him is, in our opinion, ample to discharge that
burden. He has filed Exhibit J series, which give a
complete picture of the proceedings in 0. S. No. 100 of
1919-20. Under the partition deed, Exhibit K,it will be
remembered, the brothers agreed to pay a monthly maintenance
of Rs. 8 each to their step-mother, Chellammal. This,
however, was not charged on the family properties. With
reference to their step-sisters, Srikantamma and Devamma,
the provision was simply that the brothers should protect
them. It will also be remembered that under the partition
Keshavananda and Brahmananda each got two vacant sites in
full quit of their shares. It appears from Exhibit J-10,
paragraph 2, that the two brothers were contemplating the
disposal of their plots, in which case the claim of
Chellammal and the step-sisters to maintenance would be
defeated. It became accordingly necessary for them to
safeguard their rights, and for that purpose, to file suits
for maintenance and claim a charge therefor on the family
properties. That the apprehensions of Chellammal were well-
founded is established by the fact that the two brothers
entered into agreements for the sale of their vacant sites
to Dr. Nanjunda Rao on 20-10-1919, and sale deeds were
actually executed
(1) [1906-07] L.R. 34 I.A. 27.
Article 142 in Constitution of India [Constitution]
Subbaiah Goundan vs Ramasami Goundan And Ors. on 5 November, 1952
These observations directly cover the point now in
controversy, and they embody a principle adopted in the law
of this country as to the effect of a sale in execution of a
decree passed in a defectively constituted mortgage suit.
Such a sale, it has been held, does not affect the rights of
redemption of persons interested in the equity of
redemption, who have not been impleaded as parties to the
action as they should have been under Order 34, Rule 1,
Civil Procedure Code but that it is valid and effective as
against parties to the action. This rule has been affirmed
even when the person in whom the equity of redemption had
vested is the Official Receiver, and he had not been made a
party to the proceedings resulting in sale. Vide Inamullah
Khan v. Shambhu Dayal(1) and Subbaiah v. Ramasami
Goundan(2). We should accordingly hold that even assuming
that the equity of redemption in the suit properties vested
in the Official Receiver on the adjudication of
Keshavananda, his non-joinder in the execution proceedings
did not render the purchase by Devamma a nullity, and that
under the sale she acquired a good and impeccable title,
subject to any right which the Official Receiver
(1) A.I.R. 1931 All. 159.
Kala Chand Banerjee vs Jagannath Marwari on 3 March, 1927
tion of her charge decree? It has been held by the Privy
Council in Kala Chand Banerjee v. Jagannath Marwari(1) that
when in execution of a mortgage decree properties are sold
without notice to the Official Receiver in whom the equity
of redemption had vested prior to the sale, such sale would
not be binding on him. But here, it is not the Official
Receiver, who impeaches the sale as bad. In fact, he was a
party to O.S. No. 8 of 1933-34 and would be bound by the
sale in execution of the decree therein, under which the
plaintiff claims. It is the purchaser pendente lite in the
charge suit, O.S. No. 100 of 1919-20, that now attacks the
sale held on 2-8-1928 as null and void.
The Transfer Of Property Act, 1882
The Limitation Act, 1963
Inamullah Khan vs Lala Shambhu Dayal on 10 April, 1930
These observations directly cover the point now in
controversy, and they embody a principle adopted in the law
of this country as to the effect of a sale in execution of a
decree passed in a defectively constituted mortgage suit.
Such a sale, it has been held, does not affect the rights of
redemption of persons interested in the equity of
redemption, who have not been impleaded as parties to the
action as they should have been under Order 34, Rule 1,
Civil Procedure Code but that it is valid and effective as
against parties to the action. This rule has been affirmed
even when the person in whom the equity of redemption had
vested is the Official Receiver, and he had not been made a
party to the proceedings resulting in sale. Vide Inamullah
Khan v. Shambhu Dayal(1) and Subbaiah v. Ramasami
Goundan(2). We should accordingly hold that even assuming
that the equity of redemption in the suit properties vested
in the Official Receiver on the adjudication of
Keshavananda, his non-joinder in the execution proceedings
did not render the purchase by Devamma a nullity, and that
under the sale she acquired a good and impeccable title,
subject to any right which the Official Receiver
(1) A.I.R. 1931 All. 159.
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