MOUTHAMMAL KOCHI PILLAI Vs. MEERAN HAMEED RAWTHER

JUDGEMENT

(1.) The suit property of 20 cents, which is the northern part of an entire property of 62 cents, belonged to Nagoor Meera Rawther, whose widow is the second plaintiff and whose son is the first plaintiff. In the year 1095, the two plaintiffs mortgaged the suit property by Ext. A to Meerammal, the mother of defendants 1 to 4, directing her to pay an amount specified, towards the decree in O. S. 218 of 1085, obtained by a stranger on a hypothecation bond of the year 1081, charging the whole property and pending execution. The payment was not made as directed and the whole property was sold in execution in the year 1097, under Ext. C sale certificate. Meerammal died subsequently. The auction purchaser did not get delivery of possession of a portion of the property sold including the suit property, in spite of Ext. 1, dated the 4th Dhanu 1114 evidencing delivery of possession. After the death of the auction purchaser, his heirs conveyed their rights in the suit property and in the 20 cents on the south of it to Meerasahib, the father of defendants 1 to 4 by Ext. B, dated the 29th Thulam, 1122. On the same day, Meerasahib and defendants 1 to 4 conveyed all their interests in the suit property and in the adjoining portion of 20 cents on the south in favour of the 5th defendant. The plaintiffs instituted the present suit to redeem Ext. A, impleading the 5th defendant and her husband the 6th defendant, as having some interest in the suit property. Defendants 5 to 6 set up title under Ext. C. and denied the right of the plaintiffs to redeem. In their replication, the plaintiffs contended inter alia, that the purchase under Ext. C did not affect the interest of the first plaintiff as he had not been impleaded in execution, as one of the legal representatives of Nagoor Meera Rawther who was the 2nd judgment debtor. The Munsif held, that Ext. C did not affect the interests of the first plaintiff, and decreed redemption of the suit property on the ground that the mortgagee having defaulted to pay the amount as directed in Ext. A, the purchase under Ext. B did not affect the right of the plaintiffs to redeem. This view was shared by the Subordinate Judge also, who did not consider the validity of Ext. C. as against the first plaintiff.

(2.) In second appeal learned counsel for the appellants contended, that the plaintiffs could not redeem, because the court sale took place, not solely on account of the default of the mortgagee but also on account of the default of the mortgagor as well and relied on Mt. Barti Kuer v. Brahmchari Singh (AIR 1961 Patna 439). This was not covered by any pleading. However, it is seen from Ext. B, that the mortgagor had earlier transferred another portion of the entire property charging that transferee with the payment of the rest of the amount of the decree in O. S. 218 of 1085. So the default which led to the court sale was not that of the mortgagor, so as to disentitle him from relying on S.90 of the Trusts Act, but was that of the two alienees of the mortgagor. The mortgagor was in no way in default, and therefore nothing that transpired could preclude the mortgagor from relying on S.90 of the Trusts Act, if otherwise he is entitled. This part of the argument has to be repelled.

(3.) After the death of Meerammal which took place shortly after the sale, the mortgage right became vested in her husband Meerasahib and her children, defendants 1 to 4. Meerasahib inherited an 1/4 share in the mortgage right. Meerasahib took Ext. B from the heirs of the auction purchaser in his sole name. The principle of S.90 can be invoked only so far as Meerasahib's share of the mortgage right is concerned in any case, for defendants 1 to 4 took no part in Ext. B. The equity under S.90 cannot be invoked against defendants 1 to 4. The 5th defendant must be deemed to have taken Ext. III with notice of the equity against Meerasahib, because Ext. III recited Ext. B and Ext. B recited that the mortgagee had defaulted in making the payment as directed in Ext. A. The 6th defendant as D. W. 1 swore, that it was represented at the time of Ext. III, that the entire property was sold in execution, because the mortgagee and the other transferee defaulted in paying off the decree as directed. So the equity available against Meerasahib., may be enforced against the 5th defendant as well. It has been ruled in Sarojini Amma v. Krishnan (1959 KLR 890) and Muhammathu Pathummal Nabiayathu Ummal v. Abdul Kasian Muhammed Mytheen ( 1963 KLT 1076 ) that where a sale takes place on account of such a default on the part of the mortgagee, and a stranger purchases the mortgaged property, when it afterwards comes into the possession of the mortgagee, he holds it subject to the equity under S.90.