S NANJUNDASETTY Vs. SILPI VENKATACHAR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for redemption of a mortgage of a house situated in Bangalore City effected under a registered deed dated 15-81921 for a sum of Rs. 3,000/- and prescribing a period of 26 years. Defendants 2 and 3 are plaintiff's sons and do not contest the suit. Defendant 1 while admitting the mortgage pleaded that the plaintiff has no right to redeem as the equity of redemption was purchased by defendant 1 in Ex. Case No. 1121 of 1936-37 in execution of a decree of the Court of Small Causes for payment of money due on a bond, against the plaintiff and defendants 2 and 3. The suit was dismissed by the learned Munsiff and the decision is confirmed in appeal. It is contended that the sale has not the effect of extinguishing the mortgage and that plaintiff as a person having interest in the property is entitled to redeem. Prior to the present suit defendants 2 and 3 sued the present plaintiff and defendant 1 in O. S. 36 of 29-30 impeaching his rights under the purchase. The suit ended in a compromise termss of which are set forth in Exhibit 3 dated 112- 1932. The compromise expressly recites at the beginning that the property now in dispute was acknowledged to be that of defendant 1 and that the others viz. defendants 2 and 3 and the plaintiff have no right to it.

(2.) (a). Sri Somanath Iyer, learned Advocate for the appellant, argued that since the present plaintiff was not a party to the compromise and according to the compromise the money due under the decree had to be paid, defendant must be deemed to have given up his rights under the Court sale. He also argued that the recitals in the sale proclamation and the sale certificate that the sale was subject to the mortgage denotes that intention of defendant 1 at the time was to keep the mortgage alive and that even if the equity of redemption is deemed to have been acquired by the 1st defendant he was only a trustee for the plaintiff. Plaintiff cannot pick out a portion of the compromise and ignore the rest to support his claim. The terms are to be read as a whole and the understanding in substance was that out of two properties purchased by defendant 1 at the Court sale, viz. the suit property and the adjacent one both of which were subject to mortgage, defendant 1 gave up his rights as purchaser in the adjacent item and perhaps in consideration of this the decree amount was to be paid. If the plaintiff relies upon the compromise, he cannot seek redemption as the suit property is declared therein la belong absolutely to defendant 1. This is consistent with what is stated in the sale proclamation and sale certificate. Both these mention that the property was purchased by defendant 1 subject to the mortgage. The expression 'subject to the mortgage' cannot be construed as limiting the rights of the purchaser to those of the mortgagee as that would amount to the sale conferring on the purchaser no rights at all. The sale implies that the rights of the mortgagor are acquired by the purchaser and these include the equity of redemption.

(3.) In -- 'Bhawani Kumar v. Mathura Pra-sad Singh', 40 Cal 89 (PC) (B) it was held