# LUKA MATHAI (DEAD) BY LEGAL REPRESENTATIVE v. NEELAKANTA IYERSUBRAMONIA IYER

- **Citation:** [1971] 1 S.C.R. 629
- **Court:** Supreme Court of India
- **Decided:** 1970-05-26
- **Bench:** S. M. S1Kr1, A. N. Rw. JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/luka-mathai-dead-by-legal-representative-v-neelakanta-iyersubramonia-iyer-5105
- **Pages:** 8

## Headnote

Travancore Revenue Recovery Regulation I of 1068 M.E. s. 32(2)-
Agricultural land hypothecated to f!OVzrnment sold for non-payment of
loan-Wrong survey numbers mentioned in proclamation of sale-Sale
not vitiated if identity of plots not in doubt-Misdescriplion whether resulted In low price-Sale is vitiated when plots other than tho.re hypothecared art .1old along with those hypothecated.
·
The appellant hypothecated certain agricultural lands to the Travanc~re
State Government a~ainst loans re<eeived by him.
On his failure to repay
the loans the plots in question were notified for sale after notice to the
appellant.
In the proclamation of sale the number of plot no. 54S/32A-1
was
wronglv
mentioned as 545/32-11/l
an.d the
number
of
plot
of plot no. 537/3 was wrongly mentioned as 532/3. Certain other plots
held by the acpellant although not hypothecated to the Government were
al•o sold.
Tho appellant presented a cetition to the
Division Pesllkar
challengin~ the aforesaid revenue sale without success. The acpellant th~n
filed a suit for setting aside the
sale and redcmction of the mort~n~e.
The trial court partly decreed the suit holdin~ that the sale was a nullity,
The Hi!!!h Court. however, reversed the iud,mteT\t and dismissed the ~uit.
With certificate anneal was flied in this Court. The appella11t contended :
(i} that the revenue oale wu a nullity because in effect and •ubstance
no proclamation of sate was issued in as much as wrong revenue numbers
were
mentio~d therein, (ii) that on account of wron~. number. .being
mentioned property worth. Rs. 1.00.000 had been sold for a mea~re sum
of Rs. 4,510; (iii) that under the Travancore Recovery Regulati.on the
propertv in question could not be brouqht to sale and (iv) that the Government had no authority to attach and sell plots which were never hypothecated and thereby the whole sale was vitiated.
HELD : (i) The sale of the survey numbers which were hvoothecated
to the Government was not vitiated by the mere fact that the
survev
numhers relatin~ thereto wPre wronl.!1v mentioned.
Tt wali onlv a case of
misdescription and their identity was never in doubt. [634 C-El
Sheodhvan Sln~h v. Muhammat Kuer fl 962] 2 S.C.R. 753 and Thakur
Barhma v. Jiban Ram Marwarl (1913) LR. 41 I.A. 38, applied.
(ii) There was no material to show that the nrooertv was ever \oaiued
at more than Rs. 30 000.
Consirlerin~ the fact that the plots in auestion
were mortgaged the price for which they were sold was "ot low. [634 Hl
(iii) The coint that the dues under the hond could not be recovered
. as arrears of land revenue was not raised at anv earlier otaqe,
The coun
could not set a•ide the sale on this ~ound because if it had been raised
earlier the GoYernm•nt may well have relied on the power of sale ·jtiven
under the bond. The fact that the sale took place under Ilic machinery
provided by the Revenue Recovery Regulation and not under any ad hoc
machinery set up by the Government could 11ot vitiate the sale. [635 OJ
630
SUPREME COURT REPORTS
[1971] 1 S.C.R.
· (iv) However, the appeal haJ to be allowed and sale set aside on the
A
ground that the bonds did not give power to the Government to sell the
properties other than those m !ntioncd ·in the bonds.
All the propcrticsthose hypothecated and those not
hypothecateJ-werc sold in one
lot.
This vitiated the sale and the Coun had no option but to declare the sale
of alt the properties voiJ. (6J6 A-BJ

## Text

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629
LUKA MATHAI (DEAD) BY LEGAL REPRESENTATIVE
v.
NEELAKANTA IYERSUBRAMONIA IYER
May 26, 1970
[S. M. S1KR1 AND A. N. Rw. JJ.J
Travancore Revenue Recovery Regulation I of 1068 M.E. s. 32(2)-
Agricultural land hypothecated to f!OVzrnment sold for non-payment of
loan-Wrong survey numbers mentioned in proclamation of sale-Sale
not vitiated if identity of plots not in doubt-Misdescriplion whether resulted In low price-Sale is vitiated when plots other than tho.re hypothecared art .1old along with those hypothecated.
·
The appellant hypothecated certain agricultural lands to the Travanc~re
State Government a~ainst loans re<eeived by him.
On his failure to repay
the loans the plots in question were notified for sale after notice to the
appellant.
In the proclamation of sale the number of plot no. 54S/32A-1
was
wronglv
mentioned as 545/32-11/l
an.d the
number
of
plot
of plot no. 537/3 was wrongly mentioned as 532/3. Certain other plots
held by the acpellant although not hypothecated to the Government were
al•o sold.
Tho appellant presented a cetition to the
Division Pesllkar
challengin~ the aforesaid revenue sale without success. The acpellant th~n
filed a suit for setting aside the
sale and redcmction of the mort~n~e.
The trial court partly decreed the suit holdin~ that the sale was a nullity,
The Hi!!!h Court. however, reversed the iud,mteT\t and dismissed the ~uit.
With certificate anneal was flied in this Court. The appella11t contended :
(i} that the revenue oale wu a nullity because in effect and •ubstance
no proclamation of sate was issued in as much as wrong revenue numbers
were
mentio~d therein, (ii) that on account of wron~. number. .being
mentioned property worth. Rs. 1.00.000 had been sold for a mea~re sum
of Rs. 4,510; (iii) that under the Travancore Recovery Regulati.on the
propertv in question could not be brouqht to sale and (iv) that the Government had no authority to attach and sell plots which were never hypothecated and thereby the whole sale was vitiated.
HELD : (i) The sale of the survey numbers which were hvoothecated
to the Government was not vitiated by the mere fact that the
survev
numhers relatin~ thereto wPre wronl.!1v mentioned.
Tt wali onlv a case of
misdescription and their identity was never in doubt. [634 C-El
Sheodhvan Sln~h v. Muhammat Kuer fl 962] 2 S.C.R. 753 and Thakur
Barhma v. Jiban Ram Marwarl (1913) LR. 41 I.A. 38, applied.
(ii) There was no material to show that the nrooertv was ever \oaiued
at more than Rs. 30 000.
Consirlerin~ the fact that the plots in auestion
were mortgaged the price for which they were sold was "ot low. [634 Hl
(iii) The coint that the dues under the hond could not be recovered
. as arrears of land revenue was not raised at anv earlier otaqe,
The coun
could not set a•ide the sale on this ~ound because if it had been raised
earlier the GoYernm•nt may well have relied on the power of sale ·jtiven
under the bond. The fact that the sale took place under Ilic machinery
provided by the Revenue Recovery Regulation and not under any ad hoc
machinery set up by the Government could 11ot vitiate the sale. [635 OJ
630
SUPREME COURT REPORTS
[1971] 1 S.C.R.
· (iv) However, the appeal haJ to be allowed and sale set aside on the
A
ground that the bonds did not give power to the Government to sell the
properties other than those m !ntioncd ·in the bonds.
All the propcrticsthose hypothecated and those not
hypothecateJ-werc sold in one
lot.
This vitiated the sale and the Coun had no option but to declare the sale
of alt the properties voiJ. (6J6 A-BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 542 of
R
1967.
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Appeal from the judgmeni and decree dated January 24. I 964
of the Kerala High Court in Appeal Suit No. 368 of 1959.
M. C. Chagla, Ganpat Rai anti M(l1111el T. Paikedc1,\', for the
appellant.
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A. R. Somanatha Iyer,
N.' Narayanaswwni,
K. N. Bhat and
M. R. K. Pillai, for the respondent.
The Judgment of the Court was delivered by
Sikri, J,
This appeal by certificate
granted by the
High
Court ~f Kerala is directed against its judgment and decree reversing the judgment and decree of the Trial Court -imd dismissing the
suit of the original plaintiff, appellant before U!;.
The relevant
facts for determining the points raised before us by Mr. Chagla.
learned counsel for the appellant, are as follows.
· · On December 5, 193 L the plaintiff executed a hypothecatior
bond in favour of the Travancore Government in respect of a
loan cfRs. 6,000/-.
On December 12. 1931. another bJnd was
executed in respect o~ a further loan of Rs. 4,400/-. On May
28, 1932, the plaintiff execut~ another hypothecation bond i:i
favour of the father of Neelakaata Iyer Subramonia Iyer. respondent before us. In the Government gazettes dated February 21.
1939, and April 25, 1939, under paragraph 6 reference is made
to the arrears of Rs. 4, 193 chs. 19 ca. 9 plus interest under the
special loan to be paid by 1.uka Mathai of Pallithanathu, Kott.iyam Taluk, and the sale of 97 acres of ni/am comprised in survey
~45/32·11/1 and 14 cents of purayidnm comprised in survey
~32/3.
A notice was issued to the plaintiff in March or April. 1939
(27·8·1114 M.E:) that as he had to repay Rs. 4, 193 chs. 19 ca.
9 under the special loan plus the execution costs and the intere't
thereon "it-is hereby made known that !07 acres 84 cents of properties belonging to you and comprised in survey numbers 545 /
32-11/1, 481/3, 481/4A, 48l-/4C e.tc. of Pulinkunnu Pakuthy
and which were attached will be. sold in auction on 27th Medam,
114." On May 10, 1939, the revenue auction took place and the
respondent· purchased the properties in dispute for Rs. 4,510.
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·LUKA MATHAI v. NEBLAKANTA (Slkr/, /,)
S31
The plaintiff presented a petition (Ex. M) to the Division Peshkar
against the revenue sale. In this petition it was stated as
follows:
"I received notice stating that the sum will be realised by auctioning the properties comprised in Survey
545/32-11/l, 481/5, 481/4A, 481/4C of Pulinkunnu
Pakuthy. Knowing that the aforesaid property in Survey No. 545/32 A-1, which belongs to me and which
I had given as security to Government was going to be
sold in auction on 27th Medam last, many persons had
come forward to bid the same in auction.
But the
properties that were sold in auction are the properties
comprised in Survey numbers 545/32 II/2, 481/5,
481/4A and 481/4C."
He further stated that "since the auction was conducted in this
manner the properties worth about Rs. 30,000/- were sold in
this auction for a paltry sum of Rs. 4,500/- odd."
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The sale was, however, confirmed by the Division Peshkar.
The sale certificate ( sanad) was issued to the respondent on
November 13, 1939. The sale certificate was executed and issued
under s. 34 of Regulation I of 1068, in respect of the properties
including the properties in disnute, namely, 97 acres of nilam
comprised in Survey No. 545/32-A/l and 14 cents of puray/dam
comprised in Survey No. 537 /3.
On August 5, 1941, partition suit (0.S. No. 102 of 1116)
was instituted and judgment was delivered by the Trial Court in
this suit on September 29, 1952.
Reference is made to thi~
jud21llent because basing itself on this jud21llent the 1'1ea of res
;udicata was raised by the defendant in the High Court.
·
The suit out of which the present aopeal arises,
namely,
ori2inal suit No. 492 of 1953, was filed for setting aside the sale
and redemntion of the mortgage. The Trial Court oartly decreed
the suit holdinl! that the sale was a nullity. The Hip;h Court. as
stated earlier, has reversed this judgment and dismissed the suit.
The learned counsel for the aooellant raised the following
points before us : ( 1) that the revenue sale was a nullity because
in effect and substance no oroclamation of sale was issued inasmuch as instead of mentionin<? the orooer revenue numbers of the
land, namely, survev No. S45/32-A-1. survey No. 545/32-IT/l
H . was mentioned rind in . olace of mentioninl! ~urvev. No. 537 /3
survev No. ~~2/3 was mentioned; (2) that the omnertv valued
at Rs. t,00.000/- had been sold for a meagre sum of Rs. 4.510/-,
( 3) that under the Travancore Revenue Recovery Regulation this
632
SUPREME COURT REPORTS
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[1971} t S.C.R.
. property could not be brought to sale; and ( 4) that the Government had no authority to attach _and sell plaint A schedule items·
2 to 5 and B schedule items I and 3 to 8 and C schedule items,
which were not given. as· security under the bonds; and if the
Government had no authority theon the sale of all the properties is
void.
Coming to the first point, there is no doubt tha_t wrong revenue
numbers were mentioned in the notice dated May 5. 1939. ln
the proclamation issued under s. 32 of. Regulation I of I 068 aitcr
mentioning the amount of Rs. 4, 193 ch. 19 c. 9 which was due
the properties were described in the schedule to the proclamation (ex. AB). In column I under the heading (name in which
the assignment is made : Thandappe{ and number) is. mentioned
"1.861 Luka Mathai, Pallithana.thu Kainadi Muri, Neclampetur.'"
Survey No. 545/32 is described as Nilam a~d
te ure as Pandara-
. vaka •Pattom. The area is 97 acres and faxes · e also mentioned.
There is a dispute whether against the. su. y No. 545/32 the
letter 'All' existed or '11/1' as in the original proclamation, but
th~ cannot be any dispute that otherwise the desctipllon of the
oroperty c' 97 acres is correet and complete. Regarding survey
i'lo .. 5377~ again the tenure is described as Pan<'tara Pattom. uca
14· cents and the local taxes are also given.
In his evidence the plaintiff stated :
"I was aware that the property mortgaged by me
was the property compriseJ in S. No. 545/32/ Al It is
being called .as 97 acres.
That which was mortgaged
was also 97. acres. In addition to AT I 11ave no other
properties in S. No. 545/32."
He was asked : Does anv person other than you have nilam which
is 97 acres in extent ? He answered : ''No. There are no other
persons having 97 acres of nilam in the other numbers also."
The High Court referred to some earlier proceedings for
recovery of the defaulted amounts, due to the Government, which
took place' in lHO·M.E, and 1112 M.E. and found that in those
caSei the correct 5urvey numbers had bee!) ftiven.
But. as far as
the· proclamation in auestion. relevant to the present sale are
concerned, the High Court found :
''But the proclamation which have been produced
as· Exts. AB; AD & AB all show some correction bv
oVet"-writing on the character 'A'· in S. No. 50$5/32/
A/ 1 and the figure '7' in S. No: 537 /3. The oroclamation that was published-in the Gazette on 12-9-1114
gives the Survey Numbers distinctly as 54·5/32/TT/l ·
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LUKA MATHAI v. NEELAKANTA (Sikri, J.)
633
and 5 3 2 / 3. Likewise in the sale notice Ext. J. in the
copy that is served on the plaintiff the S. No. is shown
as 545/32/11/ J while in !he original it is 545/32/
Al I, but one cannot be sure whether A has been corrected or not."
1be High Court however came to the conclusion that the descrip·
tion of the property in the relevant records was
sufficient to
identify the property correctly and to give the requisite informa·
·ti on to the intending buyers. The High Court held that Ext. M,
the relevant portion of which we have extracted above, shows
that the plaintiff had categorically stated that many persons knew
for certain that survey No. 545 /32/ A/ 1 which had been hvoothecated to Government was coming up for auction sale on May 10,
1939, and that the mistakes in the survey sub-division numbers
even if they existed at the material time had not misled anybody
and everybody concerned knew that the property proceeded
aizainst was really survey
No. 545/32/A/1 and 537/3.
The
High Court further observed that it had not been shown in the
case that the mis-descriotion of survey numbers has caused any
real prejudice to the plaintiff in the revenue sale concerned. The
High Court observed :
"There is no case that in the piece of land bearing
survey No. 545/32 the plaintiff had any other plot
than that bearing the sub-division No. A/l or that
there is a piece of land bearing the sub-division TI.I 1
therein."
The High Court finally concluded :
"An error in the survey number of the prooerty
involved in a nroclamation of sale cannot be held to
he such a vital defect as to comnel us to hold the sale
to be one 'without a proclamation' at all and to declare
the sale void on that score. esneciallv in view of the fact
that. even according to the plaintiff, nobodv was misled
by that error."
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We al!ree with this finding of the High Court.
We are
satisfied that on the material placed before us no other findinl!
could be arrived at.
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The learned counsel referred to us a number of ca<es to show
that if there is no publication of nroclamation then that woulcl
vitiate the sale. The learned counsel for the resnondent referred
tis to the decision of this Court in Sheodhvan Sintlh v. Muhammat
Kuer. (') Relying on this case the learned coumel says that it
(1) {1962] 2 S.C.R. 7~3.
634
SUPREME COURT REPORTS
(1971] l S.C.R.
was a· case of misdescription and not a case of mistaken identity.
He further says that the valuation suggested by the learned counsel is highly exaggerated because in his plaint even the plaintiff
had only said that the value was Rs. 30,000/ -.
In that case
the final decree fo~ sale in a mortgage suit and in the certificate
for sale the number of the property in dispute was
given
as
No. 160 instead of No. 1060, which was the real number but the
property was otherwise fully described· so that its identity c0uld
be clearly established. This Court held that "as the khata num·
ber, the area and the boundaries given in the final decree and
in the sale certificate tally with No. 1060, the identity is clearly
established and there has only been a misdescription of the plot
in the final decree as well as in the sale ceitificate bv the omission
of one zero from the olot number ." Jn another nassage, refer·
ring to the decision of the Privy Council in Thakur Brmnh'I v.
Jiban Ram Marwari(1) Wanchoo, J .. observed that "the effect of
this-decision is that where there is no doubt as to the identity and
there is only misdescription that could be treated as a mere irre·
gularity."
It seems to us that it is clear from the de•ails mention~d in
the oroclamation. which we have P1entioned above. that the bidder, the owner and the auctioner had no cloubt about the ide,,ti•v
of the nronertv which was being mid. This \','as not a c••P of
a non-nublication of the nroclomation oncl. therPfo~. the rulings
relied on by the learned counsel for the anpellant have no application.
Under s. 32(2) of the Travancore Revenue Recovery Regulation (Regulation 1) of 1068 what is required is that "previous to
the sale, the Tehsildar shall issue a notice specifying the name of
the defaulter, the position, tenure and extent of land and the
buildings therein; the amount of revenue assessed on the land or
upon its different sections; the proportions of the Public Revenue
due during the remainder of the current Malabar year, and the
time, place and conditions of the sale." In our opinion, the proclamation satisfies the requirements of s. 32(2).
In view of the above conclusion it is not necessary to rely on
the point of res indicate made by the High Court.
Regarding the second point, there is no material. to show that
the value of the property was anywhere more than Rs. 30,000/ •.
In view of the fact that the property had been mortgaged to
Government and to private parties, we arc; not satisfied that the
property was sold at a low price.
The Trial Court hils found
that no fraud has been proved.
(1) (1913) L.R. 41 I.A. 38.
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LUKA MATHAI I'. NEELAKANTA (Sikri, J.)
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'Ih~ third and fourth point5 arise out of the c:ross-objectiO?s
tiled by the plaintiff-appellant before us.. The High Court d!Sposed of the cross-objections in the following words :
"The plaintiff has preferred a cross-objection pleading that the revenue sale ouipit to have bee!!
~eclared
void with regard to the other items of properties mcluded
in the plaint schedule also.
Admittedly they were ~e
subject-matter oi the
attachment and
procla~auon
which culminated in the revenue sale.
No defect m the
proceedings except the error in the Survey Numbers
discussed above, to effect the validity of the reven1;1e s.ale
has been brought to our notice.
The cross-ob1echon
has no merits and has only to be dismissed."
It is not quite clear whether the third ground was specifically
rnken in the cross-objections though ground No. 5 may perhaps
cover it.
Be that as it may, as the questions of jurisdiction and
law are involved we have to deal with the point.
Section 59 of
the Travancore Revenue Recovery Regulation (Regulation No. 1
of 1068) reads thus :
"59. All arrears of Public Revenue due to Government other· than land revenue.
all moneys due from any person to Government
which under a written agreement executed by such person
are recoverable as arrears of Public or Land Revenue,
and. all specific pecuniary penalties to which such person
renders himsel~ liable under such agreement,
and also all sums declarecj by any other Regulation
for the time being in force to be recoverable as arrears of
Public or Land Revenue,
may be recovered under the provisions of this
Regulation."
The learned counsel for the plaintiff contends that there is no
written agreement which says that the moneys due under the bond
can be recovered as arrears of pllblic or land revenue.
The learn·
ed counsel for the respondent has not been able to point out any
such agreei.nent and the only point he urges is that this point was
new and should not be allowed to be taken.
No other regulation
has been brought t\> our notice which makes dues under this bond
to be recoverable as arrears of public or land revenue.
But we
are unable to set aside the sale on this ground because if the point
had been taken at an early stage the Government mav well have
relied on the power of sale given under the bond.
The fact that
the sale took place under the machinery provided by the Revenue
Recoverv Regulation and not under any ad hoc machinery set up
by the Government would not vitiate the sale.
636
SUPREME COURT REPORTS
[1971] 1 S.C.R.
But' the fourth point raised by the learned counsel for the
plaintiff is fatal for the respondent.
The bonds do not give power
to the Government to sell the properties other than mentioned in
the bond.
The properties mentioned in plaint A schedule items
2 to 5, B schedule items I and 3 to 8 and C schedule items were
not given as security under the bond and the Government had no
authority to sell them.
It is conceded on behalf of the respondent
that all the properties were sold in one lot.
This, in our opinion,
vitiates the whole sale and we have no option but to declare that
the sale of all the properties was void.
In the result the appeal is allowed and the judgment of the
High Court set aside and the decre.e passed by the Trial Court
'lOdified as follows :
"For the reasons stated in this judgment it is hereby
declared that the proceedings such as revenue sale, etc.
in respect of all the properties mentioned in the plaint
schedules A, B and C are void and are accordingly .set
aside, that the plaintiff has the right to get a release of the
properties under the mortgage deed dated 15th Edavam,
1107 including the said properties; that the plainthf do
re:over the said properties from out of the possession of
the defendants; and that the plaintiff do realise from the
defendants means profits as determined by
the Trial
Court."
The parties will bear their own costs throughout.
G.C.
Appeal allowed.
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