KUNJIKAVU AMMA Vs. JANAKI AMMA

JUDGEMENT

(1.) This second appeal is by the plaintiff in a suit for enforcement of alleged prior charge or for redemption, which has been concurrently dismissed by the courts below.

(2.) The plaint schedule property was originally owned by the plaintiff Kunhi Kavammal. She first executed Ext. A fidelity bond on 26.3.1100, securing the property for a sum of Rs. 500 towards guarantee of the faithful discharge, by her brother, of his duties as Muthalpadi etc., in the Cochin Kovilakam. Thereafter in 1105, she executed, in favour of the defendants, a simple mortgage and also a Purakadom for an aggregate sum of Rs. 350. This debt in due course led to the decree and execution proceedings in O.S. No. 144 of 1109 on the file of the Irinjalakuda Munsiff's Court whereby the defendants themselves became the purchasers of the property but subject only to the prior charge, to the extent of Rs. 500 under Ext. A. This Court sale was on 7.5.1112, Ext. I being the sale sannad. The defendants took delivery of the property subsequently on 6.5.1113 under Ext. V delivery Kychit. By Thulam 1118 the plaintiff's brother retired from his office in the Kovilakam and as no liabilities arose in connection with his services, Ext. A bond was returned to the plaintiff as discharged. The result, according to the plaintiff, was that she became the first charge-holder for the sum of Rs. 500 over the property in the hands of the defendants. The plaint averred that the defendants acknowledged such liability by payment of interest at 6 per cent on the debt for a period of two years but latterly they defaulted to pay either the interest or the principal. This suit was, therefore, laid on 11.1.1950 for realisation of the amount of Rs. 500 by sale of the property or alternatively for redemption on payment of the hypothecation and Purakkadom amounts. The defendants contested the suit on the footing that Ext. A did not constitute any prior charge over the property. But even so, it stood discharged on the retirement of the plaintiff's brother without fault, and the plaintiff could not derive any benefit in consequence. The mere mention in Ext. I sale sannad of Ext. A as a prior charge, did not impose any obligation on the defendants to pay the amount concerned to the plaintiff. The defendants also denied the allegation in the plaint as to acknowledgment of liability or payment of interest for 2 years or at all. Both the courts below have dismissed the suit and hence this second appeal by the plaintiff as abovesaid.

(3.) Mr. A.S. Krishna Iyer, learned counsel for the appellant, strenuously contended that the courts below had misled themselves in considering that the court sale in favour of the defendants was subject to and not free from encumbrance. According to learned counsel there should be a specific statement in the sale deed that the property was sold subject to encumbrance, if it was to be held to be so; otherwise the sale should be deemed to be free of encumbrances and he equited the rule of construction in case of sale inter vivos to that in invitum. It seems to me, however, that there is no justification for the proposition as stated by learned counsel. On the other hand no sale is free from encumbrances unless there is an express provision to that effect. And court sales as contrasted with private sales are always without warranty of title, i.e, the purchaser gets the property with all the risks and defects in the judgment debtor's title. There can be no doubt, in any event, in this case, that the defendants have purchased the property subject to the encumbrance under Ext. A. For Ext. II sale sannad uses the expression "FS-¡pSn \nÀ¯n" and "#ML#FS-¡pSn Ign¨v#/ML# and refers to the charge under Ext. A besides michavaram dues from 1107 onwards as constituting the "FS-¡pSn" or encumbrances. Indeed the stand taken up by the plaintiff in her petition to set aside the sale in execution in favour of the defendants under O.21 R.90, C.P.C and even in the plaint herein was that the property was sold subject to the charge under Ext. A. And if that is so, the position is very well settled that if the encumbrances subject to which the property is sold, turn out to be invalid or in some way unenforceable, the benefit goes exclusively to the purchaser. In the leading case Izzat-Un-Missa Begam v. Partab Singh ILR 31 All. 583 P.C. certain properties were sold subject to encumbrances which were later found to be invalid and as such not binding on the property as the result of subsequent litigation. The vendor then brought a suit against the vendee for the amount due on the encumbrances as unpaid purchase money in the hands of the vendee and their Lordships in negativing the contention observed that on the sale of property subject to encumbrances the vendor got the price of his interest, whatever it may be, together with an indemnity against the encumbrances affecting the land. If such encumbrances turned out to be invalid, the vendor had nothing to complain of. For, he had got what he bargained for and his indemnity was complete.