E. Venkatrama Aiyar vs A. Elumalai Naicker and Others

Walter Salis Schwabe, K.C., C.J.—The Chief Justice The plaintiff claims a certain land which he says he purchased at a Court-auction. The

land purchased was mortgaged by the judgment-debtor, the second defendant, to the decree holder, who obtained a mortgage decree and brought

the land to Court-auction. The land was described probably in the mortgage as '' nanja 55 '' though it is not quite clear that the word '' nanja '' in

the mortgage itself necessarily applied to the number 55: but it was certainly so described in the decree, in the notice of sale and in the certificate of

sale. Before the sale and after the suit, the first defendant, the appellant, bought from the judgment-debtor, his brother-in-law, the land described

as No. 55 Punja. In this village, the numbers used for description of lands run consecutively irrespective of whether the land is punja or nanja.

There is no other No. 55 in this village. The land is in fact punja and not nanja. In my judgment the word ''Nanja'' used in the mortgage and in the

decree and in the documents relating to the auction is merely an inaccurate description of the land properly described as No. 55 and thus identified

and in my judgment that land was mortgaged and was the subject of the decree, and was the land that was sold. If the description of the land given

is such that it identifies the land, for instance, if the description used would apply to some other land than that which it was intended to sell, then

according to the judgment of the Privy Council in Thakur Barmha v. Jiban Ram Marwari 26 M.L.J. 89 the purchaser at Court auction can get no

other land than that so identified. If, on the other hand, the land is clearly identified, but wrongly described, the misdescription is to be treated as an

irregularity and the sale at the auction stands good. As this land was the subject of the mortgage suit, although there was an error in the description

of it, in my judgment, Section 52 of the Transfer of Property Act applies, and during the pendency of that suit,''the first defendant would get no title

to it. Further it was ordered in this case that the description, ""Nanja ""should be altered into ""Punja ""and the various documents from the mortgage

deed onwards be rectified accordingly. It was argued that, under the Specific Relief Act, rectification could not be ordered where rights of third

parties intervene. It is said that the purchase by the first defendant was a bona fide purchase for value without notice and the rectification cannot be

made so as to affect the right which he has acquired. The answer given on this point by the Subordinate judge is that the first defendant was not a

bona fide purchaser for value. That I think is a question of fact and, there being evidence to support it, it is not open to this Court on Second

Appeal to reconsider it, but I think it right to say that the fact of the relationship of the first and the second defendants, the suspicious

circumstances, as to the consideration and the fact that the first defendant never even asked to see the title-deeds before purchasing the land amply

warrant the Subordinate Judge and the District Munsif in arriving at the conclusions which they did on this point. In view of what I have said about

the application of Section 52 of the Transfer of Property Act, this point does not arise.

This appeal must be dismissed.

Wallace, J.

I agree.