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Raja Goundan v. Raja Goundan And Ors.

Madras High Court

Nov 16, 1893

Judgment

Subsequent
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Factual and Procedural Background

The appellant (plaintiff in the lower Court) brought a suit with two alternatives: (1) for cancellation, insofar as his share is concerned, of a sale of the Puthur mittah held on 16 June 1886 (the entire mittah having been sold), or (2) if the June sale could not be set aside, for a declaration that the defendants held the appellant's share as trustees and for a decree directing conveyance of the appellant's share and of income since the defendants took possession.

At trial the Subordinate Judge found that the suit was not barred by limitation in general, and that had the suit sought to set aside the first sale held on 15 February 1886 the plaintiff would have been entitled to a decree. However, the Judge held that the second sale (16 June 1886) was not open to question by the plaintiff because by then the property had become Government property as purchaser at the February sale.

The material events: on 15 February 1886 the mittah was put up for sale for arrears of revenue and, being bid for by no one else, was purchased on behalf of Government for Rs. 1,000; this purchase was reported to the Board of Revenue and treasury credit orders were issued. Subsequently the Collector recommended a resale (letter Exhibit H, dated 11 March 1886) and the Board of Revenue sanctioned a resale (Proceedings dated 2 April 1886). The mittah was resold on 16 June 1886 when the first defendant became purchaser. The plaintiff challenges that June 1886 sale.

Legal Issues Presented

Whether the Subordinate Judge was correct in holding that the resale of 16 June 1886 was a sale by Government of property already belonging to Government (by reason of the prior purchase on 15 February 1886) and therefore not open to challenge under Section 38 of Act II of 1864 as amended by Act III of 1884.
Whether the appellant's suit to set aside the sale is barred by limitation (specifically the six-month period under Section 59 of Act II of 1864) having regard to the appellant's date of majority.
Whether, alternatively, the first defendant should be treated as having purchased as trustee for the appellant (i.e., whether there was any fraud or trust relationship arising from the resale and subsequent transactions).

Arguments of the Parties

Appellant's Arguments

The appellant sought cancellation of the 16 June 1886 sale (or declaration of trust) on grounds that include alleged illegality—specifically alleged contravention of an express law (Regulation X of 1831 was mentioned in the plaint).
The appellant contended that the limitation under Section 59 of Act II of 1864 should not apply to sales that are illegal (as distinct from merely irregular) because they contravene express law.
The appellant contested the admissibility of the horoscope relied on by the respondents to establish the appellant's date of birth and majority.
The appellant argued that first defendant should be held to have purchased as trustee for the appellant (i.e., that defendants' conduct amounted to a fraud or created a trust in favour of the appellant).

Respondents' Arguments

Respondents maintained that no order of the Collector cancelling the February sale (as would be required under Section 38 as amended) was produced or in fact passed; instead the Collector's letter and the Board's proceedings treated the June transaction as a resale of Government-owned property.
They pointed to documentary indicia (notifications and exhibits) showing the resale was of property held by Government (e.g., entries of current revenue as nil in the resale notification) and that the resale was pursuant to Standing Order No. 111 dealing with lands bought in by Government.
Respondents relied on evidence (including the horoscope produced earlier and various depositions and petitions) to show the appellant attained majority earlier than alleged and thus the suit for cancellation was time-barred under Section 59.
Respondents denied fraud and contended that the Collector's recommendation showed the resale was to permit co-sharers to secure the mittahs and arrange among themselves to clear encumbrances, and that subsequent resales by the first defendant to co-sharers did not indicate fraud.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Venkata v. Chengadu, I.L.R. 12 Mad. 168	Authority supporting that the period of limitation for a suit of this kind is six months from the date of the sale (reference to Section 59 of Act II of 1864).	The court cites this as supporting the proposition that cancellation suits must be brought within six months of the sale.
Gobind Lal Roy v. Ramjanam Misser, I.L.R. 21 Cal. 70 (Privy Council ruling dated 8 July 1893)	Ruling that a sale made under a revenue Act is a "sale under the Act" within the Act's meaning even if it contravenes some provisions of the Act (for example by irregularity or by contravening an express exemption provision); implication that limitation still applies.	The court relies on this recent Privy Council ruling to reject the appellant's contention that limitation does not apply where illegality (as opposed to mere irregularity) is alleged; thus limitation under Section 59 applies to the sale challenged here.
Ramnarain Kallia v. Monee Bibee, I.L.R. 9 Cal. 613	Calcutta rulings concerning the admissibility and circumstances of production of horoscopes in evidence.	The court distinguishes these Calcutta cases from the present facts: in those cases horoscopes were produced for the first time by the party relying on them, whereas here the horoscope was produced earlier by the plaintiff's mother and became part of the public record; therefore those precedents do not control the present admissibility question.
Satis Chunder Mukhopadhya v. Mohendro Lal Pathuk, I.L.R. 17 Cal. 849	Another Calcutta ruling on horoscopes and their production.	Similarly distinguished: court finds the present facts materially different because the horoscope here had been produced ante litem motam and was relied on as an admission rather than as newly tendered evidence.

Court's Reasoning and Analysis

The court's reasoning proceeded in clear stages addressing the three principal issues identified above.

1. Whether the June 1886 sale was open to attack:

The court noted the absence of any Collector's order cancelling the February sale under the provisions of Section 38 of Act II of 1864 as amended by Act III of 1884; in fact, no such order was produced and it was admitted none was passed.
The Collector's letter (Exhibit H) and the Board of Revenue's proceedings (Exhibit I) were examined. The court observed that neither document states that the prior sale was set aside; the term "resale" was used, which the court read as indicating a second sale rather than a cancellation followed by a fresh sale under Section 38.
The court compared the resale notification (A) and the earlier sale notification (B): in A the current revenue payable by the purchaser is entered as nil, whereas in B the corresponding entry shows Rs. 8,532-1-7 outstanding. This contrast was taken as strong evidence that the 16 June transaction was a resale of property already belonging to Government as purchaser at the February sale, not a sale on account of arrears of revenue of privately held property.
The court also noted that Exhibits II and V connected the resale with Standing Order No. 111 of the Board of Revenue, which deals with lands bought in by Government—further supporting the view that the resale was of Government-owned property.
On these bases the court concluded that the June sale was not a sale under Section 38 open to attack by the plaintiff; therefore the suit to set aside the 16 June sale fails on this substantive ground.

2. Limitation (Section 59 of Act II of 1864):

Even if the sale were otherwise challengeable, the court held the claim to set aside the sale was time-barred. The governing provision is Section 59 of Act II of 1864, which prescribes a six-month period for suits of this kind.
The court rejected the appellant's argument that the limitation does not apply to sales tainted by illegality (as opposed to mere irregularity), relying on the Privy Council ruling in Gobind Lal Roy v. Ramjanam Misser which held that a sale made under the Act remains a sale "under the Act" even if contrary to some provisions; hence limitation still runs.
The appellant alleged minority up to October 1889 so as to bring the suit (instituted 31 March 1890) within six months of majority; the Subordinate Judge found, and the court accepted, that the appellant was born on 29 November 1870 and attained majority on 29 November 1888, making the suit instituted some sixteen months after majority and therefore outside the six-month period.
On proof of age the court relied on a horoscope (Exhibit XXV) produced by the appellant's mother before the Tahsildar in November 1880 and subsequently preserved in public records; corroborating evidence included depositions and petitions (Exhibits V and LIII and related depositions) that consistently support the date of birth and age finding. The court treated the horoscope not as evidence under Section 32 of the Evidence Act but more as an admission falling within Sections 17 and 18 of the Evidence Act. The court found the evidence of birth and majority to be well supported.
Accordingly, the claim for cancellation was held to be time-barred under Section 59.

3. Allegation that first defendant purchased as trustee / fraud:

The court examined whether the purchase by the first defendant and his subsequent resale of portions to certain defendants could justify a presumption of fraud or imposition of a trust in favour of the appellant.
Relying on the Collector's letter (Exhibit H), the court observed that the arrears of revenue that led to the sale were entirely due on the villages belonging to the appellant's branch; shares of other defendants were sold only because of registry technicalities. The Collector recommended a resale to permit a co-sharer (Kylasa Goundan) or others to secure the mittah and arrange among themselves to clear encumbrances.
Given that context, the court found no reason to hold that the first defendant was a trustee for the appellant or that the transactions manifested fraud. The subsequent resales by the first defendant to co-sharers under Exhibits G and F did not furnish grounds to presume fraud.

Based on these analytical steps the court concluded that the appellant's claims must fail: substantively because the 16 June sale was of Government-owned property, procedurally because the claim to cancel was time-barred, and factually because there was no basis to impose a trust or declare fraud on the evidence.

Holding and Implications

Holding: The court ordered that the appeal be dismissed. The core ruling may be summarized as: DISMISSED.

Implications:

Direct effect on the parties: The appellant's suit to set aside the 16 June 1886 sale fails; the court refused to set aside that sale, held the claim for cancellation to be time-barred under Section 59 of Act II of 1864, and rejected the contention that the first defendant purchased as trustee for the appellant. The appeal was dismissed with costs (two sets).
Broader legal effect: The opinion applies existing statutory provisions and precedents (including a recent Privy Council ruling) to the facts but does not purport to lay down a novel legal principle. The decision follows established authority regarding (a) the interpretation of resales where Government is purchaser, (b) the application of the six-month limitation period under Section 59 to sales made under a revenue Act even where irregularities or contraventions are alleged, and (c) the admissibility and probative character of a horoscope produced ante litem motam as an admission corroborated by other records. The court did not indicate that a new precedent was created.

Disposition by the court: The appeal is dismissed with costs (two sets). Muttusami Ayyar, J. delivered the judgment and another judge concurred.

Show all summary ...

1. The appellant was plaintiff in the lower Court, his suit being (1) for cancellation, so far as his share of the Puthur mittah (in Salem district) is concerned, of a sale held on the 16th June 1886 by which the entire mittah was sold; or (2) in case it is found that the sale is not liable to be set aside, for a declaration that defendants hold the plaintiff's share as trustees and for a decree directing them to convey to plaintiff his share of the mittah and of the income thereof since the date on which defendants got possession of the same.

2. The Subordinate Judge has found that plaintiff's suit was not barred by, limitation, and that if the suit had been for the purpose of setting aside the first sale hold in February 1886, plaintiff would have been entitled to a decree, but that the second sale (of June 1886) is not one that is open to question by the plaintiff, as it was a sale of property no longer belonging to plaintiff, but belonging to Government as purchaser at the sale of February 1886.

3. As is seen from Exhibit I, the mittah in question was put up for sale, for arrears of revenue, on 15th February 1886, when there being no other bidders, it was purchased on behalf of Government for Rs. 1,000 and this fact was reported to the Board of Revenue on the following day (see Exhibit T); and orders were also issued at once to the treasury to credit this sum of Rs. 1,000 towards the arrears of the said mittah (see Exhibit XXXIX, also Exhibits XL and III). The mittah was again sold, on 16th June 1886, on the Collector's recommendation contained in his letter to the Board of Revenue which is filed as Exhibit H (dated 11th March 1886), the resale being sanctioned by the Revenue Board's Proceedings, dated 2nd April 1886 (see Exhibit I).

4. The Collector's letter H is as follows:

"Since reporting the result of the sales of the Puthur and Tammakurichi mittahs, I have the honour to inform the Board that I have received two offers, one for Rs. 35,000 for the two mittahs that have been sold. As only a certain number of the villages of each mittah (though not separately registered) belongs to the minor proprietors for whose default they were sold, and as the owners of the other villages have regularly paid their share, I would strongly recommend a resale to enable Kylasa Goundan who has offered the Rs. 35,000 or some other co-sharers to secure these old-standing mittahs and thus arrange among them-solves to clear off all encumbrances. This, Kylasa Goundan proposes to do. Government can in no case be losor."

5. It must hero he noticed that Tammakurichi mittah was also sold on the 15th February 1886 when Puthur was sold, and bought like Puthur on behalf of Government for Rs. 1,000, but plaintiff' does not appear to claim any interest in that mittah, his case being (vide paragraph 2 of the plaint) that there had been a partition between his branch of the family and that of defendants 1 and 3 to 8, though the registry continued joint. By I "the resale of the mittahs is sanctioned as recommended "with the proviso that" Kylasa Goundan's offer should be fixed as the upset price."

6. The mittahs were accordingly resold on the 16th June 1886, when first defendant became the purchaser: this is the sale that is now sought to be set aside, and which the Subordinate Judge has held to be not a sale under Section 38 of Act II of 1864, but a sale by Government of property that had already become its own by reason of the purchase at the prior sale of 15th February.

7. The first question for consideration in this appeal is whether the Subordinate Judge is right in thus holding? The answer to this question must, I think, be in the affirmative. As pointed out by the Subordinate Judge, no order passed by the Collector cancelling the sale of February, with reference to the provisions of Section 38 of Act II of 1864 as amended by Act III of 1884, has been produced. On the contrary, it is admitted that no such order was passed; but the Collector's letter H. (above set out in full) is referred to as being equivalent to such an order. Neither in this letter however nor in the Revenue Board's Order thereon (Exhibit I) is there anything said about setting aside the previous sale, and the mere use of the word resale clearly implies nothing more than a second sale. It is clear also from Exhibits II and V that the resale was with reference to Standing Order No. 111 of the Board of Revenue which deals with lands bought in by Government. No doubt the notification of this resale was issued in the form prescribed under Act II of 1864 for sales on account of arrears of revenue; but it is explained on behalf of the respondents, that no form had then been prescribed for sales under Standing Order No. 111. Be this as it may, the circumstance that in the notification A (Clause 2) the current revenue payable by the purchaser is entered as nil, when compared with the corresponding entry in B, the notification of the sale of 15th February (in which the sum is stated to be Rs. 8,532-1-7 places beyond doubt the fact that the 'resale' was not on account of arrears of revenue, but of property that belonged to Government as purchasers at the previous sale. Such being the case, the order (Exhibit O) is of no weight. This suit which is for setting aside the sale of 16th June 1886 for irregularitions in such sale must therefore fail.

7. But even if the suit did not fail on this ground, it must do so as time-barred in so far as cancellation of the sale is sought. The period of limitation for a suit of this kind is six months from the date of the sale, see Section 59 of Act II of 1864 and Venkata v. Chengadu I.L.R. 12 Mad. 168. The appellant's contention that the limitation prescribed by the above section is inapplicable to sales which are open to the objection of illegality (as distinguished from mere irregularities) by reason of their contravening some express law--such as Regulation X of 1831, as alleged in the present case, is 1 opposed to the recent ruling (dated 8th July 1893) of the Privy Council in Gobind Lal Roy v. Ramjanam Misser I.L.R. 21 Cal. 70 where a similar contention in the case of a sale under Act XI of 1859 was disallowed on the ground that a sale is a sale made under the Act within the meaning of the Act, when it is

"a sale for arrears of Government revenue, held by the Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened."

8. It was therefore incumbent on appellant to have brought his suit before the expiration of six months from the date of his attaining majority. If it were a fact, as alleged in the plaint, that plaintiff was a minor till October 1889, this suit, which was brought on 31st March 1890, would be in time. But the Subordinate Judge has found--and no doubt rightly--that plaintiff was born on 29th November 1870 and consequently attained his majority on the 29th November 1888, which is sixteen months prior to the institution of this suit.

9. The fact of plaintiff's birth having taken place in November 1870 is proved from his horoscope (Exhibit XXV), which was produced by his mother before the Tahsildar in November 1880. It is initialled by the Tahsildar with the addition of the date, 10th November 1880, and in the deposition VII of Kaliyammal (appellant's mother), dated 9th idem, she is found to have stated that there was a copy of the horoscope with Rama Krishnier and that she would " send a person and get it this night." Rama Krishnier has been examined as defendants' third witness and identifies Exhibit XXV as the copy which he, then gave to Kaliyammal. It is now produced from the public records where it appears to have been kept ever since its production in November 1880. Moreover, there is no room for doubt as to its identity with the horoscope produced before the Tahsildar, for in his report (X) to the Collector, which is dated 12th November 1880, he gives the plaintiff's age as 9 years 11 months and 11 days on the 18th idem, and in the Collector's letter VIII (of 13th December 1880) to the Board of Revenue the plaintiff is stated to be a minor 'now aged 10 years.' As at the time of the deposition VII and production of XXV there was no reason for misrepresenting the age of plaintiff, the evidence thus afforded may be safely relied on. It is also in accordance with the age of the plaintiff as stated in Exhibits V and LIII, the former of which is a deposition of Kaliyammal, dated 22nd March 1879, when she stated the plaintiff's age to be eight years, and the latter a petition of the same Kaliyammal, dated 7th December 1879, in which her son's age is given as nine years. This petition is proved by defendants' eighth witness Ramalinga Aiyan, by whom it was presented on behalf of Kaliyammal under the vakalat (Exhibit LII). These documents give support to the evidence of defendants' fourth witness Ramasawmi Aiyan, who was manager under plaintiff's father from Akshaya (1866-67) till his death in Iswara (1877-78). He states that plaintiff was born in the year Pramoduta (1870-71). It has been contended on behalf of appellant that the horoscope is inadmissible in evidence and in support of this contention we have been referred to the rulings of the Calcutta High Court in Ramnarain Kallia v. Monee Bibee I.L.R. 9 Cal. 613 and Satis Chunder Mukhopadhya v. Mohendro Lal Pathuk I.L.R. 17 Cal. 849. Those cases are not on all fours with the present one. In both the Calcutta cases the horoscopes wore produced then for the first time and by the parties relying on them; whereas in the present case defendants are relying on a horoscope produced by plaintiff's mother and which has been a public record from a period ante litem viotam. It is not put in here as evidence admissible under Section 32 of the Evidence Act, but more as an admission,' to which sections 17 and 18 of that act are applicable. The date of plaintiff's birth is found to be 29th November 1870 and this finding is well supported by the evidence. The suit so far as it seeks for cancellation of the sale is consequently time-barred under Section 59 of Act II of 1864.

10. It is therefore unnecessary to consider the alleged illegalities or irregularities in the conduct of the sale.

11. But it is further contended on behalf of appellant that, even if plaintiff is not entitled to a decree setting aside the sale, the first defendant should be held to have purchased as a trustee on plaintiff's behalf and a decree should he passed awarding to plaintiff his share of the zamindari. First defendant was in no son so a trustee for the plaintiff, and there is no reason whatever for holding that the sale was brought about by fraud on the part of the defendants. As is soon from the Collector's letter (Exhibit H), the arrears of revenue on account of which the mittah was sold were entirely due on the villages which constituted the share of plaintiff's branch, and the shares of defendants 3 to 8 were sold only because they were also liable in consequence of their not being separately registered. It was because the revenue due on the other shares had been 'regularly paid' that the Collector recommended the resale

"to enable Kylasa Goundan or some other co-sharer to secure these longstanding mittahs and to arrange among themselves to clear off all encumbrances."

There is therefore no ground for presuming fraud from the circumstance of first defendant having, subsequently to his purchase on 16th June 1886, resold portions to defendants 3 and 5 to 8 respectively under Exhibits G and F.

12. I would dismiss this appeal with costs (two sets).

Muttusami Ayyar, J.

13. I concur.