TMI Blog1964 (10) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant purchased the property subject to the preexisting mortgage in her favour. The amount due under the mortgage was ₹ 33,264 and as auction-purchaser, the appellant paid ₹ 2,800 whereby she purchased the equity of redemption vesting in respondent No. 3, the judgment-debtor. It is the validity of this sale that is challenged in the present proceedings. Long before the mortgage was executed, respondent No. 3 had executed in favour of his mother, respondent No. 1, a docu- ment whereby her maintenance was guaranteed. This document had created charge over certain properties belonging to respondent No. 3. On the strength of this document, respondent No. 1 sued- respondent No. 3 (civil suit No. 233 of 1952). In this suit, she claimed arrears of maintenance and asked for a declaration that the properties specified in the plaint, which were the same as the properties covered by the previous agreement between the parties, were subject to a charge for her maintenance. The trial Court gave her a decree for arrears of maintenance, but declined to make the declaration as to charge claimed by her. This decree, was pronounced on the 31st July, 1952. Against this decree, respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuting Court on that issue and sent the case back for disposal in accordance with law, with a direction that the issue as to substantial injury should be tried afresh. This order was pronounced on the 26th August, 1955. After remand, the Executing Court considered the issue as to substantial injury and held that respondent No. 1 had failed to show any substantial injury. As a result of this finding, it ordered that her application under 0. 21 r. 90 should be dismissed, and the sale should be confirmed. This order was pronounced on the 27th April, 1957. Aggrieved by this order, respondent No. 1 preferred an appeal, and since the High, Court of Judicature at Rajasthan had then come into existence, her appeal was heard by the said High Court. The High Court has held that the Executing Court was in error in coming to the conclusion that respondent No. 1 had not proved substantial injury. The contentions raised by the appellant in support of the ultimate decision reached by the Executing Court were rejected by the High Court, and as a result, the application made by respondent No. 1 was allowed and the impugned sale set aside. This appellate order was pronounced on the 29th July, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be drawn up and shall specify as fairly and accurately as possible any incumbrance to which the property sought to be sold is liable. The failure to mention the charge in favour of respondent No. 1 would, therefore, constitute an irregularity within the meaning of 0. 21 r. 90(1). This position is also not in dispute. The contention, however, is that the application made by respondent No. 1 does not show what injury she has suffered as a result of the said irregularity, and that, it is argued, constitutes a serious infirmity in the application which would entail its dismissal. On the other hand, Mr. Sharma for respondent No. 1 has relied on the fact that the auction sale would virtually wipe out or extinguish the rights which have accrued to respondent No. 1 by virtue of the charge declared by a decree in her favour, and he has suggested that the legal consequence flowing from the fact that the auction sale has been held without notice of the charge in favour of respondent No. 1 itself constitutes substantial injury to the interests of respondent No. 1. This argument is based on the latter part of S. 100 of the Transfer of Property Act. We will presently refer, to this provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. Mr. Sharma contends that the auction-purchaser holds the property as a result of the auction sale, and in that sense, the property must be held to have been transferred to him. He adds that the charge was not notified in the proclamation, and so, the auction purchaser has no notice of the charge, and the sale is undoubtedly supported by consideration. In other words, the case of the appellant directly falls under this part of s. 100, and so, respondent No. 1 would not be able to enforce her charge against the property purchased by the appellant at the auction sale. That, according to him, constitutes substantial injury. This argument raises the question as to whether the relevant provision of s. 100 takes in the cases of auction purchase at all. For answering this question, it is necessary to refer to two other provisions of the Transfer of Property Act. Section 2(d) provides that nothing herein contained shall be deemed to affect, save as provided by S. 57 and Chapter IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n s. 5 of the Transfer of Property Act. Section 5 provides, inter aria, that in the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons. In other words, in terms, the definition of the expression transfer of property as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter vivos, and an auction-sale clearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of s. 100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define and amend certain parts of the law relating to the transfer of property by act of parties. That is the position which emerges from the reading of s. 5 coupled with the preamble; and that naturally raises the question as to how to reconcile these two inconsistent positions. In our opinion, the positive provision contained in s. 2(d) must prevail over the definition of transfer of property prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Calcutta High Court in Creet v. Ganga Ram Gool Raj,(1) which appear to support the contrary view do not, in our opinion, correctly represent the true legal position in this matter. Therefore, we must deal with the present appeal on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a conse- quence of the said irregularity, some injury has resulted to respondent No. 1. That raises the question as to whether the said injury can be said to amount to substantial injury within the meaning of proviso to 0. 21 r. 90(1); and this inevitably would be a question of fact. The High Court appears to have held that as soon as it is shown that the charge would become unenforceable against the appellant auction-purchaser by virtue of the provisions of S. 100, it follows as a matter of law that respondent No. 1 has suffered substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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