B. Tiruvalloor Pillai vs Seshadri Iyer and Others

The plaintiff who failed in both the courts below is the appellant. He filed a suit for a permanent injunction restraining the defendants from

interfering with the peaceful possession and enjoyment of the properties by him or in the alternative for recovery of possession of the same. The

suit properties are comprised in S. No. 200/6 of an extent of 2-66 acres and S. No. 201 measuring 0-15 cents. The first defendant is the

purchaser of the suit properties in the revenue sale and the second defendant is the State of Tamil Nadu represented by the Collector who ordered

the revenue sale. Defendants 3 to 5 are the brothers of the plaintiff and the 6th defendant is his wife.

The suit properties belonged absolutely to one Kanakavalli Ammal, the plaintiff''s mother. She had borrowed a loan of Rs. 2,000 from the 2nd

defendant for the purchase of an oil engine, the loan being repayable in 10 monthly instalments on the security of the first item of the suit properties.

Ex. B-9 dated 8-3-1954 is the security bond executed by Kanakavalliammal and others in favour of the second defendant in respect of that item.

But the said Kanakavalliammal had earlier executed a settlement deed Ex. A-1 dated 19-11-1951 in respect of both the items whereunder she has

created a life interest for herself and another life interest in favour of the plaintiff, and thereafter granted an absolute interest in favour of the

plaintiff''s minor sons.

As the said Kanakavalliammal did not pay the instalments due as per the provisions of the security bond Ex. B-9, both the items of properties were

sold by the second defendant under the provisions of the Revenue Recovery Act on 21-11-1960 and the first defendant became the successful

bidder. The sale was confirmed on 17-5-1962 and the first defendant is said to have taken delivery of the suit properties on 14-7-1962. On 16-

12-1960 Kanakavalliammal had issued a notice u/s 80, C. P. Code to the second defendant to the effect that she intends to file a suit for setting

aside the revenue sale held on 21-11-1960. But Kanakavalliammal died on 17-9-1961. The plaintiff has thereafter filed the present suit in 1964 for

the reliefs detailed above without issuing a fresh notice u/s 80. C. P. Code, but relying on the notice issued by his mother under Ex. A-11 in 1960.

In the suit the plaintiff has questioned the validity of the revenue sale on various grounds.

The first defendant resisted the suit contending that the revenue sale was not invalid as alleged by the plaintiff, that the properties have been sold

for a reasonable price that there was no irregularity in the conduct of the sale, that the sale was confirmed only after the plaintiff and defendants 3

to 5 had exhausted their remedies provided under the Revenue Recovery Act upto the Board of Revenue for setting aside the sale and that in any

event, the plaintiff had no subsisting interest in the suit properties. It was also contended that the suit is barred u/s 37-A, 38 and 59 of Madras Act

2 of 1864 and that the suit is also bad for want of notice u/s 80. The stand taken by the second defendant was practically the same. Defendant 3 to

6 supported the case of the plaintiff.

The trial court, after considering the evidence adduced by the parties, both oral and documentary, held that the revenue sale as regards item 1

was valid but that the said sale in relation to item 2 was bad in view of the fact that item 2 had not been included in the security bond Ex. B-9. It

therefore declared that the sale of item 2 was invalid and directed delivery of possession of the said item to the plaintiff. The trial court had held that

though the plaintiff had not in fact issued a notice u/s 80. C.P.C. the notice issued by his mother under Ex. A-11 could be availed of by him, and,

that therefore, the suit is not liable to be dismissed for want of proper notice u/s 80, C.P.C.

The plaintiff appealed as regards the dismissal of the suit so far as it related to the first item and the first defendant filed his memorandum of

cross-objections questioning the decree of the trial court setting aside the revenue sale in relation to item 2. The second defendant filed a separate

appeal challenging the decision of the trial court as regards item 2. The lower appellate court, however, took the view that the notice issued by the

plaintiff''s mother under Ex. A-11 cannot be taken advantage of by him, and that he not having issued a fresh notice u/s 80. C.P.C., his suit is not

maintainable. It also held that Kanakavalliammal, the plaintiff''s mother, having died on 17-9-1961, and the life interest which has been created in

his favour under the settlement deed Ex. A-1 having been parted with by him in favour of his wife under an earlier settlement deed Ex. B-31, dated

27-7-1961, he had no subsisting interest in the suit properties so as to clothe him with a right to challenge the revenue with a right to challenge the

revenue sale and that, therefore, he had no cause of action to maintain the present suit.

The lower appellate Court also went into the question of the validity of the revenue sale and held that the same is null and void in view of the

various irregularities and vitiating circumstances. But in view of its finding that the plaintiff has no subsisting interest in the suit properties on the date

of suit and that the suit is bad for the non-issue of a notice under Sec. 80, C.P.C. by the plaintiff, it dismissed the suit.

In this second appeal, Mr. Parasaran, learned counsel for the appellant, contends that the finding of the lower appellate Court that the plaintiff

had no subsisting interest or right to question the revenue sale in relation to the suit properties and that the suit is bad for want of notice u/s 80,

C.P.C. cannot legally be sustained. The learned counsel for the first defendant besides supporting the said finding of the lower appellate Court,

questioned its findings that the revenue sale is null and void, in relation to both the items of properties. As the question of the validity of the sale will

arise only if the suit is maintainable, I proceed to deal with the question of the maintainability of the suit.

As already stated, defendants 1 and 2 have taken up the stand that the plaintiff has no subsisting interest in the property so as to entitle him to

maintain the suit and that in any event the notice issued by his mother Ex. A-11 u/s 80, C.P.C. cannot be availed of by him and therefore, the suit

filed by him without the issue of a fresh notice u/s 80, was bad. The plaintiff''s stand is that though he has parted with his interest in the properties

under Ex. B-31, dated 27-7-1961, in favour of his wife, he is entitled to question the validity of the revenue sale as a legal representative of his

mother and that in any event the plaintiff''s wife having been impleaded as the 6th defendant in the suit, the suit cannot be dismissed on the ground

that the plaintiff has no subsisting interest. It is also his case that the notice issued by his mother under Ex. A-11 would enure for his benefit and that

he is entitled to file the suit on the basis of the said notice without himself issuing a fresh notice u/s 80.

In Bachu Singh v. Secy. of State, ILR (1903) All 187 it was held that to permit the successor to rely on a notice given by the predecessor will

amount to adding words to Section 49 of the Court of Wards Act and that a notice given by a person under that section is not available to a

successor-in-interest. Mahadev v. Secy, of State AIR 1930 Bom 367` laid stress on the omission from Section 80, C. P. Code of 1908 of the

word ''intending'' form the expression ''intending plaintiff'' found in Section 424 of the old Code, and held that the benefit of the notice issued u/s

80, C. P. Code cannot be taken advantage of by another. In Sree Raja Venkata Rangiah Appa Rao Bahadur and Another Vs. The Secretary of

State for India in Council and Others, . Sundaram Chetti J. had expressed the view that there should be identity of the person who issued the

notice with the person who issued the notice with the person that brings the suit, that a suit brought by a legal representative of a deceased person

and a suit brought by a transferee would offend against Section 80, C.P.C. if the notice required by that section was given by the deceased man or

the transferor. The above decision of Sundaram Chetty J. has been confirmed by a Division Bench in (Sree Rajah) Venkata Rengiah Appa Rao

Bahadur and Others Vs. Secy. of State and Others, and has also been followed by the Bombay High Court in The Secretary of State for India Vs.

Hargovandas Narottamdas Shah, .

In Srimathu Raja Muthu Vijaya Raghunatha Doriasingam alias Gowri Vallaba Thevar Avergal, Zamindar of Sivaganga through Subramanya

Ayyar, Dewan and authorised Agent Vs. Muthu K.R.M. Muthayya Chettiar and Others, , Varadachariar J. however held that the legal

representatives and assignees must prima facie be taken to be included in any reference to a person in a statute, unless the reason of the rule of law

cannot clearly apply to anybody but the original owner of the property and that, therefore, the legal representatives of the predecessor who issued

the notice u/s 80 are entitled to maintain the suit on the basis of the said notice. Referring to the view of Sundaram Chettiar J., in Sree Raja

Venkata Rangiah Appa Rao Bahadur and Another Vs. The Secretary of State for India in Council and Others, , that there should be identity of the

person who issued the notice with the person who brings the suit, the learned Judge observed-

''In a sense, this will be correct, that is, if legal identity is all that is required and the transferee or heir is in law the continuation of the person of the

transferor or ancestor. But, I am not, with all respect, prepared to accept the correctness of the statement of the learned Judge, if physical identity

of the person is to be insisted on. To take a converse illustration, it is well established that notwithstanding physical identity, a person claiming in his

own right is legally different from the same person claiming as a trustee. It seems to me much more consistent with the purpose of provisions like

Section 80, C. P. Code, or Section 49 of the Court of Ward Act to hold that notwithstanding the physical identity of the person, a notice given in

one character will not avail when the claim is made in the other character than to hold that the physical identity of the individual is the deciding

factor.

In that case the plaintiff relied upon the notice given by a former proprietor u/s 49 of the Court of Wards Act whose interest was purchased by the

plaintiff later on the sustain the suit filed by him. The question was whether there was sufficient notice satisfying that provision. It was held that the

provisions of Section 49 should be construed in the light of well established general principles of law and that the notice given by a person, when it

otherwise satisfied the requirements of law, should be taken to be available for the benefit of the persons claiming under him. The learned counsel

for the appellant very strongly relies on the said decision of Varadachariar J. and contends that the view expressed in the decision is the correct

legal position and that if the notice already issued by the mother of the plaintiff under Ex. A-11, satisfies the requirements of Section 80, C.P.C.

then it will enure to the benefit of the plaintiff who is one of her legal representatives claiming under her.

The learned counsel also refers to the decisions of the Supreme Court in State of Andhra Pradesh Vs. Gundugola Venkata Suryanarayana

Garu, and Beohar Rajendra Sinha and Others Vs. State of Madhya Pradesh and Others, , in support of his submission that the object of notice u/s

80 of the Code is only to give the Government or the public servant concerned an opportunity to consider the legal position and to make amends

or settle the claim out of court, that though the section is imperative and must be so strictly construed that the failure of complying with the

requirements in the section will entail the dismissal of the suit, the notice must be reasonably construed, and that the absence of identity of the

persons filing the suit with the persons who issued the notice cannot be taken to be fatal to the maintainability of the suit. In the former case, the suit

was filed in a representative capacity after getting the requisite permission of the court and the plaintiff complied with the requirements of section

80.

It was contended that the notice u/s 80 having been issued by the plaintiff and another and the suit having been filed only by the plaintiff, the suit

was defective. While meeting that contention, the Supreme Court expressed the view that the mere fact that another person who had joined the

plaintiff is serving the notice under Sec. 80 did not join in seeking the permission of the court would not render the plaint and the proceedings in the

suit defective. The above decision of the Supreme Court is mainly rested on the fact that the plaintiff has filed the suit in a representative capacity

and therefore all the persons who issued the notice need not be arrayed as plaintiffs. Their Lordships of the Supreme Court in that case had,

however, expressed the view that if more than one person has instituted the suit claiming reliefs personally to them but not all have served the

statutory notice, the suit will have to fail in view of the decisions of the Privy Council in Vellayan Chettiar v. Govt. of the Province of Madras AIR

1947 PC 197 and AIR 1949 143 (Privy Council) .

In AIR 1947 PC 197, a notice was given by one plaintiff stating the cause of action, his name, the description and the place of his residence

and the relief which he claimed but the suit was instituted by him and another. The Privy Council observed-

The section (Sec. 80) according to its plain meaning, requires that there should be identity of the person who issues the notice with the person

who brings the suit. See Sree Raja Venkata Rangiah Appa Rao Bahadur and Another Vs. The Secretary of State for India in Council and Others,

and on appeal (Sree Rajah) Venkata Rengiah Appa Rao Bahadur and Others Vs. Secy. of State and Others, . To hold otherwise would be to

admit an implication or exception for which there is no justification.

In AIR 1949 143 (Privy Council) two trustees of a Trust served a notice under Sec. 80 intimating that the trustee intended to institute a suit against

the Government on a cause of action for the reliefs set out therein. One of the trustees died before the plaint was lodged in court, and two more

trustees were appointed in the place of the deceased trustee. Thereafter the two new trustees and the surviving trustee filed the suit. No notice was

served on the Government on behalf of the two new trustees. The Privy Council held that the suit was bad for the reason that-

the provisions of Sec. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been

served on the Government. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government

before the filing of the suit.

In Beohar Rajendra Sinha and Others Vs. State of Madhya Pradesh and Others, the question was whether a notice issued by a karta of a joint

family could be availed of by a coparcener who had become divided subsequent to the said notice. The Supreme Court expressed the view that

though Sec. 80 is imperative and the noncompliance therewith will entail the dismissal of the suit, the notice issued under the section must be

construed reasonably and any unimportant error or defect therein cannot be permitted to be treated as an excuse for defeating a just claim and that

in considering whether the provisions of the statute are complied with, the court must take into account the object of the Legislature, namely, to

give to the government or the public servant concerned an opportunity to reconsider its or his legal position, and that if on a reasonable reading of

the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defect or irregularity should be

ignored. In that case, the court held that there was substantial identity of the person giving the notice with the persons filing the suit as the notice has

been given by the karta as a representative of the joint family and therefore, the notice given by the karta was sufficient to sustain the suit brought

by a divided coparcener.

Keeping the principles enunciated in the above cases in mind, let us consider the facts of this case. As already stated the notice Ex. A-11 was

issued by the plaintiff''s mother on 16-12-1960 u/s 80. Subsequently the plaintiff''s mother died in 1961. On that date the plaintiff had no interest in

the suit property as he had assigned all his rights accruing to him on the death of his mother in the suit property in favour of his wife under Ex. B-

31, dated 27-7-1961. Therefore it cannot be said that the plaintiff has filed the suit as a person claiming interest in the suit properties under his

mother. If the plaintiff were to be taken as the legal representative of his mother then his brothers D-3 to D-5 also her legal representatives, could

have been joined as plaintiffs so that it could be said that there is identity between the person who issued the notice and the person who filed the

suit. The facts in this case, therefore, cannot be brought even under the decision of Varadachariar J. in Srimathu Raja Muthu Vijaya Raghunatha

Doriasingam alias Gowri Vallaba Thevar Avergal, Zamindar of Sivaganga through Subramanya Ayyar, Dewan and authorised Agent Vs. Muthu

K.R.M. Muthayya Chettiar and Others, , where the learned Judge has given a liberal construction of S. 80 and held that if a notice is given by a

person under that section any person claiming under him can file a suit without giving a fresh notice. The plaintiff having purported to part with all

his rights in the suit property under Ex. B-31, in favour of his wife before the death of his mother, he had no subsisting right in the property on the

date of the death of his mother so as to entitle him to file the suit. I have, to therefore, hold that, even assuming that the notice issued by the

plaintiff''s mother could be availed of by her successor-in-interest, the plaintiff having no subsisting interest in the property which is the subject

matter of the revenue sale, cannot rely on the said notice issued by the mother, nor can he maintain the suit in his own right. In this view the

plaintiff''s suit should be held to be incompetent.

In view of my above finding on the maintainability of the suit, the question relating to the validity of the revenue sale need not be gone into.

The result is the second appeal fails and is dismissed. There will be no order as to costs. No leave.

Appeal dismissed.