Gnaniar Rowther v. V. Krishna Aiyar

JUDGMENT

The suit in this case was for ejectment and the plaintiff was bound to prove his title to the land in question, and the defendants were entitled to show that any link in his chain of title was bad, and they sought to prove that he had by fraud committed by him in execution proceedings induced a Court to pass an order confirming a sale held by the Court and to grant a sale certificate to the plaintiff's immediate predecessor in-title. It was argued on behalf of the respondent that this plea of fraud was not sustainable and that the defendants, who were entitled to intervene in the execution proceedings to set aside the Court sale, should have adopted that procedure, and cannot in this suit go behind the order of the Court. This argument might hold good in a case where the execution proceedings had been merely irregular, in which case various considerations would influence the Court in exercising its power to set aside a sale; but a party is entitled to show that an order of a Court was obtained by fraud and is in fact a nullity. (See Evidence Act, section 44, and observations of Willes, J., in Queen v. Saddlers' Co.,. The order of the Court obtained by fraud is in fact in the same category as a forged conveyance; it is a nullity which cannot confer title, and we are of opinion that the defendants were entitled to set up this plea, and that the learned District Judge should have given a finding upon it. We therefore direct the District Judge to return findings on issues Nos. 1 and 2. Findings will be submitted within six weeks from the date of the receipt of this order and seven days will be allowed for filing objections.

In compliance with the above order, the District Judge of Madura submitted the following

FINDING.

I am required to submit findings on the following issues:—

(I) Whether plaint properties belong to plaintiff by purchase?

(II) Whether Narayanan Servai was the owner of these properties and whether the Court sale to 4th defendant and the sale by the 4th defendant to plaintiff are valid and binding on defendants 1 to 3?

2. It was not disputed at the trial of the action before the District Munsif that Narayana Servai was the owner of the properties. The claims under the settlement by Arianachee had been compromised. No argument has been addressed to me on this point on behalf of the respondents. I therefore accept the case put forward in the plaintiff's pleadings that Narayana Servai was the absolute owner of the property. This is my finding on the first portion of the second issue.

3. The right, title and interest of Narayana Servai in these properties was purchased by 4th defendant in execution of the decree in S.C 599 of 1903 and the plaintiff has acquired whatever title 4th defendant possessed. Unless then the execution proceedings were a mere nullity, the plaintiff must be considered the owner of the properties and the first issue must be answered in the affirmative.

4. I take it that it is for the defendants to establish the case of fraud on which they rely and that they are limited to the specific averments regarding it made in their written statement. The written statement of 1st defendant contains no such particulars but only a general statement that the plaintiff in collusion with the decree-holder in S. C. 599 of 1903 had the properties fraudulently attached and brought to sale. In the written statement of defendants 2 and 3, there is also a similar general allegation that the execution proceedings were “a series of frauds perpetrated by the plaintiff with the co-operation of his relatives.” The only specific allegations are that the plaintiff bought the properties in the name of a minor nephew and that although they were worth nearly Rs. 30,000, they were purchased for Rs. 220.

5. The allegation that 4th defendant was a minor is not now pressed. As to the total value of the properties, the evidence is to the effect that in 1910 at least they would be worth approximately Rs. 30,000. P.W 1 puts the value at Rs. 7,000 or 8,000; but he is not a person whose word is entitled to credit and he is clearly under-estimating. The statements of P.Ws 3 and 2 support the figure already given. It is a little difficult to believe that this is not an exaggeration, for an average rate of Rs. 1,400 an acre is very high; but, however this may be, there can be no doubt that the lands were very valuable.

6. There is no suggestion that the plaintiff was making the purchase on behalf of the decree-holder in the Small Cause Suit and the fact that 4th defendant was buying on behalf of the plaintiff who supplied the money does not in itself indicate fraud. It is true that the decree-holder and the plaintiff are relatives and residents of the same village but beyond this there is nothing which directly brings home to the plaintiff any connection with the execution proceedings prior to the sale. As has already been mentioned, the written statements contain no specific allegations regarding the conduct of the execution proceedings. An answer elicited from Narayana Servai that the proclamation was never made in the village has been referred to. This was not relied on before the District Munsif and the plaintiff cannot be expected to be prepared to meet allegations of which he has had no notice. I do not see how the plaintiff can be held responsible for the conduct of the execution proceedings.

7. The reference to the settlement-deed and the hypothecation by Karuppayee seem to be matters which might quite fairly be referred to with a view to leading intending purchasers to make inquiries. It is not denied that such transactions did exist. In fact there can be no doubt that the extent of the alienations and burdens alleged by different parties was considerably understated. The incorrect assertion that the mortgage under Exhibit II covered twelve items instead of four only is no doubt a serious mis-statement, but I am by no means satisfied that it really affected the course of the sale.

8. As to the inadequacy of the price, it has to be noted that the title of the judgment-debtor to the majority of the items was questioned altogether. A will by the last male-holder and also a settlement by Arianachee were set up and have been relied on by the defendants 2 and 3 in their pleadings. A fourth of the land had been alienated prior to the attachment (vide Exhibit J) and a number of encumbrances had been created, e.g, Exhibit II, and the claims of 1st defendant in O.S Nos. 173-176 and 177. The total of these comes to about Rs. 8,000. I have no doubt that the price was unduly low but considering the cloud on the title and the litigation and expenditure which must follow before the auction purchaser could get possession, the absence of competition is not altogether to be wondered at. Inadequacy of price is not in itself sufficient to establish the defendants' case and I do not think that they have shown that the inadequacy is the outcome of acts or omissions which would entitle them to have the sale treated as a nullity as against the auction-purchaser. I would therefore answer the second part of the second issue in the affirmative.

This Second Appeal came on for final hearing after the receipt from the Lower Appellate Court of the findings on the issues referred.

JUDGMENT

We accept the finding and dismiss the Second Appeal with costs of the 1st respondent.

Appeal dismissed.