C GNANASEKARAN Vs. INSPECTOR GENERAL OF REGISTRATION

JUDGEMENT

(1.) The Second Appeal is filed against the Judgment and Decree passed in A.S. No. 8 of 2004 dated 29.07.2004 on the file of the Learned First Additional District Judge. Fast-Track, Thanjavur, confirming the Judgment and Decree passed in O.S. No. 357/1998 dated 24.07.2003 on the file of the Learned District Munsif, Thanjavur. The Suit O.S. No. 357 of 1998 is filed for redemption of the suit property and for possession.

(2.) The plaintiff purchased the suit property by a sale deed dated 09.3.1988 (sic). The mortgage period was over as early as 05.10.1996. Therefore, the plaintiff issued a notice to the mortgagee and also to one V. Annadurai, who was in possession of the property under an arrangement with the mortgagee. As there was no reply, the Suit is filed for redemption of mortgage and for possession against the mortgagee and as well as against the person who is in possession.

(3.) The first defendant/mortgagee remained ex parte. The second defendant contested the Suit. According to the second defendant, by a sale agreement dated 27.2.1995, the said Kalaiyalagan agreed to sell the property to the second defendant for a sale consideration of Rs. 2,87,625/- and also received an advance amount. The sale has to be executed within six months and after redemption of the usufructuary mortgage. However the said Kalaiyalagan didn't redeem the mortgage and was prolonging the sale. Meanwhile the first defendant approached the second defendant for the return of mortgage amount of Rs. 10,000/- and agreed to assign the mortgage with the second defendant. Therefore, the second defendant paid a sum of Rs. 10,000/- on 26.07.1995 with the consent of the original mortgagor, namely Kalaiyalagan and obtained a made over from the first defendant. He had put up a Thatched Shed and presently one Valarmathi wife of the second defendant's brother-in-law is in possession and enjoyment of the property by running a firewood shop and also residing there. The original owner was evading sale and the second defendant was always ready and willing to perform his part of contract. The second defendant was about to file a Suit for Specific Performance and only to defraud the agreement holder the plaintiff and the said Kalaiyalagan had created a sale deed which is a sham and nominal. Even otherwise, the possession of the second defendant is protected under Section 53A of the Transfer of Property Act.