RUKMANI AMMAL Vs. JAGDEESA GOUNDER

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree passed by the High Court of Madras in Second Appeal No. 1939 of 1986. By the said appeal, the High Court set aside the judgment and decree passed by the Subordinate Judge, Tindivanam in Appeal No.6 of 1983 which in turn set aside the judgment and decree passed by District Munsif, Tindivanam in Original Suit No. 63 of 1983.

(2.) To appreciate the controversy raised in the present Appeal, factual background may be stated in brief : The appellants herein were original defendants and respondent was the original plaintiff. One Annamalai was the absolute owner of the property bearing R.S. 81 situated at village Peravur in Taluka Tindivanam, admeasuring 1 acre and 52 cents (hereinafter referred to as the suit property). Annamalai mortgaged the said property by a usufructuary mortgage to defendant No.1 Rukmani Ammal by a document Ex. B-5 dated June 27, 1962 to secure repayment of Rs.400/- on a pro-note. Defendant No.1 was put in possession of the property. Annamalai had also taken another loan from Rukmani Ammal on another pro-note executed by him. On August 13, 1964, Annamalai sold 67 cents from the suit property to plaintiff-Jagdesa by a registered sale-deed Ex. A-1 for Rs.800/-. There was a recital in the sale-deed that the defendant No.1 was in possession of property as a mortgagee and the plaintiff had thus purchased the equity of redemption from Annamalai. Since the defendant No.1 was not repaid the amount of another loan under pro-note, she instituted a money suit being Small Cause Suit No. 176 of 1965 wherein a decree was passed. The suit-property was put up for sale in execution of money decree. The auction took place on August 3, 1966. The defendant No.1 purchased the property with the leave of the Court. Sale was confirmed on September 5, 1966 and sales certificate Ex. B-7 was issued in her favour, and she took delivery of possession through Court on January 18, 1967. The property was subsequently sold by Rukmani Ammal (Defendant No.1) to Krishna Gounder (Defendant No.2) on August 16, 1979 by a sale-deed, Ex. B-19.

(3.) On March 1, 1980, the plaintiff issued a notice to defendant No.1 asking her to hand over possession of 67 cents from the property to the plaintiff but the defendant No. 1 refused to do so. The plaintiff, therefore, filed a suit on June 6, 1980 for declaration of title and also for possession of property. It was alleged by the plaintiff that defendant No.1 was mortgagee in possession of the property and since the mortgage was usufructuary one and the defendant No.1 was in possession for a continuous period of ten years, the mortgage was deemed to be discharged under the Tamil Nadu Debt Relief Act, 1979 and defendant No.1 was bound to deliver possession of the property to the plaintiff. It was also alleged by the plaintiff that he was not aware of Small Cause Suit No. 176 of 1965 by defendant No.1 nor the decree passed in the said suit and attachment and sale of property; that the Court auction was illegal and invalid as no notice was issued to the plaintiff before undertaking auction sale nor an opportunity was afforded to him. The auction, therefore, would not bind him as it was fraudulent. A prayer was accordingly made to declare auction sale invalid and to put plaintiff in possession of the property. According to the plaintiff, he purchased 0.67 cents out of 1 acre, 52 cents of the suit property and had become owner of that portion.