The main legal point established is the requirement for proper notice of demand in revenue recovery proceedings and the necessity to determine the rights of sub-mortgagees in a redemption suit.

M. Madhavan Nair, J.

1. A. S. No. 559 is by the 7th defendant, and A. S. No. 619 by defendants 3 and 8 in O. S. No. 100 of 1951 on the file of the District Court, Trivandrum.

2. The suit properties belonged to the tarwad of the plaintiff, and were mortgaged under Exts. P. 6, P. 7 and P. 8 for an aggregate sum of fanams 8,000, and the mortgage interest had ultimately devolved on the 2nd defendant in the case. Defendants 3 and 8 had a sub-mortgage in respect of suit item No. 1 to the extent of fanams 1,500, evidenced by Exts. D17 and D18. In his written statement, the 3rd defendant (the 8th defendant is his wife) submitted readiness to surrender the property on payment of the sub-mortgage amount and challenged the plaintiff's claim for damages for loss of suit item No. 4 in revenue sale being charged on the entire mortgage amount so as to affect the sub-mortgage of the 3rd defendant and his wife. The court below, even in allowing the claims of other sub-mortgagees, defendants 4 and 6 to be paid out of the suit mortgage amount, did not advent to the like claim made by defendants 3 and 8, but made them liable for mesne profits of the suit properties and costs of the plaintiff, though only in conjunction with the other defendants in the case.

3. Suit item No. 4 was sold for arrears of Revenue on 22-12-1113 and delivered on 6-3-1115 to the 7th defendant in the case, the relative sale certificate being Ext. D14 and the delivery list Ext. D15. The plaintiff questioned the validity of the revenue sale on the ground of the processes that led to it being defective. As per the land records, three persons, viz., Marthandan Raman, Narayanan Paramesvvaran and Kunju Kalyani were the thandaper-holders of the property. Ext. II is a demand notice issued on 28-3-1113 addressed to all the three thandaper-holders. The endorsement of return thereon indicated Narayanan Parameswaran to be dead. Thereafter, a fresh demand notice, Ext. I, was issued on 25-8-1123, addressed to Marthandan Raman' and Kunju Kalyani only. It was duly served on them and on its basis further proceedings were had and the property sold on 22-12-1113. As the property stood registered in the names of three persons of whom one died before the sale, the court below held the revenue sale to be void and therefore, set aside the same and allowed the plaintiff to recover the property.

Hence these appeals.

4. The evidence is that Narayanan Parameswaran died in about the year 1110M. E. The concerned revenue recovery proceedings were had three years after the death of one of the thandaper-holders. Even in the course of the proceedings, his death was brought to the notice of the authorities by the return of Ext. II notice of demand. It was incumbent on them to have made an enquiry as to who his legal representative was before they proceeded to sell the property for recovery of the arrears of revenue.

5. Sections 5 and 41 of the Travancore Revenue Recovery Act, I of 1068, (under which the instant revenue sale took place, which will be referred to herein?fter as 'the Act') provided :

"5. When Public Revenue due on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulter's movable or immovable property or both, in the manner hereinafter provided.

41. It shall be lawful to the Division Peishkar or Tahsildar to attach or sell the whole or any portion of the land of a defaulter for the recovery of arrears of revenue.........."

The indication in these provisions is that the property proceeded against for recovery of revenue must be the property of a defaulter. In other words, the property must be of the defaulter when it is actually sold in revenue auction.

6. The word "defaulter" was not defined in the Act, but has been denned in the Travancore - Cochin Revenue Recovery Act (VII of 1951) as meaning

"a person from whom an arrear of public revenue is due, and includes a person who is responsible as surety for the payment of