Ramasamy Gounder vs Rangasamy Thevar (Died) and 2 others

S.S. Subramani, J.—Defendant in O.S. No. 153 of 1984, on the file of Sub Court, Tiruppur, is the appellant. After the Appeal was filed, the sole respondent died, and his legal representatives have been impleaded as additional respondents 2 and 3. Suit filed by the deceased respondent was one for declaration of title, recovery of possession and also for recovery of arrears of rent with future mesne profits.

It is the case of the respondent that the property originally belonged to D.W.2 in the case, i.e., Nagaraja Iyengar His assets were taken over by the Official Receiver, and the same were sold as per Ex.A-1, to the respondent. At the time when the property was sold, appellant herein was the tenant. According to respondent, after the sale in his favour, he is entitled to collect the rent and since the appellant denied the title, the suit was filed for declaration of title and recovery of possession with arrears of rent, and also for future mesne profits.

It is the case of the appellant that the property belonged to Nagaraja Iyengar and he has been paying rent to him. Even after the so called sale by the official Receiver, rent was being collected by D.W.2. According to him, Nagaraja Iyengar still continues to be the owner and, therefore he is not liable to pay rent. In the suit, there was one more defendant. Though relief was claimed against him, during trial, second defendant vacated the premises and, therefore, it was submitted before that Court that no relief need be granted against him.

On the above pleadings, trial Court, after suggesting issues, took oral and documentary evidence. Ex.A-1 is the sale certificate and Exs.A-2 and A-3 are the notice and reply. In Ex.A-2, Plaintiff has sought the defendants to vacate the property, and in Ex.A-3, defendants have refused to comply with his demand. On the side of the appellant herein (i.e., first defendant in the suit), Exx.B-1 and B-2 were marked. These documents were produced only to show that in spite of the sale by the Official Receiver, the building still stands in the name of Nagaraja Iyengar and the original owner''s name has not been removed from the records of the Local Authority. Oral evidence was let in by plaintiff as P.W.1. The appellant got himself examined as D.W.1 and, as stated earlier, the previous owner was examined as D.W.2.

After evaluating the entire evidence, trial Court came to the conclusion that the property originally belonged to Nagaraja Iyengar and the Property had also been sold by the Official Receiver. But, since as between the plaintiff and first defendant, there was no relationship of landlord and tenant, it was found that he was not liable to pay rent. The trial Court was also of the view that symbolical possession was not taken after the Receiver''s sale, though the title was found in favour of plaintiff. In that view of the matter, trial Court declared the title of the plaintiff. Rut all the other relief''s were refused.

Against the judgment, plaintiff preferred A.S. 93 of 1985, on the file of District Judge, Coimbatore. Appellant (first defendant) did not prefer any appeal. Lower Appellate Court took the view that the Receiver''s sale is not like a Court sale and, therefore, the taking of symbolical possession is not necessary. The lower Appellate Court also came to the conclusion that since the first defendant admitted that he is a tenant of Nagaraja Iyengar, u/s 109 of the Transfer of Property Act, the rights and liabilities of the owner get assigned in favour of the plaintiff. Therefore, the appellant was declared as a tenant.

Before the lower Appellate Court, respondent submitted that he is not pursuing his remedy for recovery of property, and he will be satisfied if the defendant is directed to pay arrears and also the future profits. In view of the said submission, in modification of the trial Court''s decree, the lower Appellate Court directed the appellant to pay rent to the plaintiff. It is against the said judgment, defendant has preferred this Second Appeal.

At the lime of admission of the Second Appeal, the following substantial questions of law were raised for consideration:-

1) Whether the issue of sale certificate will automatically establish the possession of the suit property without taking delivery of the property in the manner known to law and 2) Whether the decree of arrears of rent without being the Landlord-tenant relationship is valid.

I do not think there is any question of law in this case, much less substantial question of law.

Both the Courts below have found that the property originally belonged to Nagaraja Iyengar (D.W.2) All his assets were taken over by the Official Receiver. Even D.W.2 (Nagaraja Iyengar) admitted that the schedule properties were said to the plaintiff. A Receiver''s sale is like a private sale. Instead of the real owner selling the property, the Receiver sells the right, title and interest of the owner as per orders of Court. In all respects, it is only a private sale, as if it is executed by the real owner. I had occasion to consider the effect of a Receiver''s sale in the decision reported in Subbulakshmi Ammal v R. Balasubramanian & 31 others 1996-1-L.W.730; aim the entire case-law has been discussed in that case. In the said decision I have held thus:-

In AIR 1919 Cal (supra), it was held that ''the title of a purchaser of land from and Official Receiver, appointed under the Provisions of the Provincial Insolvency Act, (required to be perfected by a proper conveyance executed by the Official Receiver and duly registered, and there is nothing to exempt such a conveyance from the operation of S.54, of the Transfer of Properly Act.

(Emphasis as in the Original Reports)

In Pinnamameni Basava Sankaram by mother and guardian Rattamma Vs. Garapati Narasimhulu and Others, , a larger Bench consisting of five judges of this Court, considered a similar question. Four learned judges held that ''a sale by an Official Receiver of the insolvent''s property is not a transfer contemplated by operation of law, nor it is a transfer by a decree or order, and even though the property vests in a Receiver in Insolvency proceedings, when a Receiver transfers the property to an aliened, the alienation is voluntary transfer and is as much an act of parties as any transfer by a private individual.

In Kamsala Narasappa Vs. Hussain Sab and Others, , it was held that ''the official Receiver is not a Civil Officer and hence a transfer deed executed by the Official Receiver in pursuance of an auction sale held by him is not exempt from registration under S.17 (2) (xii) of the Registration Act''. In AIR 960 SC 291 (supra), the question raised for consideration was, whether a sale by a Receiver is liable to be set aside under O. 21, R. 89, C.P.C.

Their Lordships held thus:

Where the Court appoints a Receiver and gives him liberty 10 sell the property the Receiver may either sell the property and thereby realise the money for the satisfaction of the decree, or he may, even without selling the property, seek to satisfy the decree by the collection of rents due from the property or other ways open to him under the law. In such a case it is difficult to hold that by the very appointment of the Receiver clothing him with the power to sell the property if he thought it necessary to do so, the Court has ordered the sale of the said property within the meaning of O. 21, R.82, C.P.C. Further, as the provisions of S.66, O. 21 are inapplicable to sales held by Receivers, it is obvious that the second condition prescribed by R.89 (1) (h) is equally inapplicable and it is undoubtedly one of the two essential conditions for the successful prosecution, of an application under R.SO of O. 21. This fact clearly emphasises the inapplicability of the whole Rule to sales held by receivers.

Similar is the case reported in AIR 1969 Alla 554 (supra) wherein the administration was in respect of an evacuee property. It was held that ''When the Custodian sells the evacuee property under S. 10 (2) (b) prima facie the provisions of the Transfer of Property Act would apply. So, the sale of property of worth more than Rs. 100/- must be in writing and must also be registered, and if the property is less than Rs. 100/-, it may be either by a registered instrument or oral sale, or by delivery of possession. In that case, their Lordships followed an earlier decision of this Court reported in Kamsala Narasappa Vs. Hussain Sab and Others,

From these decisions, it is clear that the sale by an Administrator or Receiver cannot be treated as a Court sale. The person who claims title to the property on the basis of such sale can claim absolute title or perfect his or her title only on the basis of a registered instrument as stated in S.54 of the Transfer of Property Act....

A Symbolical delivery is envisaged only if there is a Court sale, or when a decree is passed for eviction pursuant to a decree and when the properties are in the possession of a tenant. Only in such cases, there is a necessity for symbolical delivery. As I said already, when the sale by the Official Receiver takes place, the rights and liabilities of the parties will be governed by the Transfer of Property Act, as stated by the lower Appellate Court. u/s 109 of the Transfer of Property Act, all the rights and liabilities of the owner get transferred on the basis of that assignment. In this case, since the appellant admits that he is the tenant of the previous owner, when the ownership is transferred, the purchaser will get that right to collect the rent. The appellant also will become the tenant of the purchaser.

No other point was raised in this Second Appeal. The finding of the lower Appellate Court, therefore does not call for any interference. The Second Appeal is accordingly dismissed. No costs.