MOHAMED ALI Vs. M K ABDUL SALAM SAHEB

JUDGEMENT

(1.) THE first respondent-plaintiff filed O.S. No, 1665 of 1969 on the file of the Third Assistant Judge, City Civil Court, Madras, for redemption of a mortgage, dated 13th February, 1960 executed in favour of the first defendant in respect of the property originally known as door No. 19, Mohammed Hussain Khan Lane, Royapettah, Madras. THE mortgaged property originally belonged to defendants 4 to 7 in the suit and they had executed the mortgage, dated 13th February, 1960, for a sum of Rs. 4,000. THEre was a partition of door No. 19 in the family of the owners and the property was renumbered as door Nos. 19-A, 19-B and 19-C. Door Nos. 19-A and 19-B were allotted to defendants 4 to 6 and door No. 19-C to the seventh defendant, who died pending suit and whose legal representatives are defendants 9 to 13 in the suit. On 2nd July, 1967, defendants 4 to 6 agreed to sell to the plaintiff the equity of redemption in the property, door No. 19-A, measuring 800 sq. ft. for Rs. 9,000 and received an advance of Rs. 250. As per the recitals in this agreement of sale, a sum of Rs. 4,000 out of the sale consideration will have to be in discharge of the mortgage, dated 13th February, 1960. Subsequent to this agreement in favour of the plaintiff the plaintiff also got a mortgage over the same property, namely, door No. 19-A on 19th July, 1967. THE amount is supposed to have been borrowed by defendants 4 to 7 under the mortgage for the purpose of discharging an earlier mortgage in favour of the third defendant. When defendants 4 to 6 refused to execute the sale deed in pursuance of the agreement of sale, dated 2nd July, 1967, the plaintiff herein filed O.S. No. 441 of 1967, on the file of the City Civil Court, Madras, praying for a decree for specific performance of the agreement of sale, dated 2nd July, 1967, and for sale of door No. 19-A. When this suit was pending, since the mortgage money due under the mortgage, dated 13th February, 1960 in favour of the first defendant had become due and had not been paid, the mortgagee exercised his power of sale under tion 69 of the Transfer of Property Act, under the document and brought the property to sale through the 8th defendant-auctioneers. THE property was sold by auction on 13th February, 1969 and the 14th defendant purchased the same. THEreafter this suit was filed on 17th March, 1969 praying for redemption of the mortgage, dated 14th February, 1960. Pending the present suit the suit, O.S. No. 441 of 1967 for specific performance was also decreed and on 4th December, 1970 the sale deed was executed in favour of the plaintiff herein in respect of door No. 19-A. THE plaintiff in the present suit had pleaded that the sale held on 13th March, 1969, was not valid and that the plaintiff is entitled to redeem the mortgage in favour of the first defendant. THE plaintiff also contended that only a sum of Rs, 2,450 was due under the mortgage and that he is entitled to a decree for redemption on payment of that money. THE second defendant had been impleaded in the suit, since he was the party who bid at the auction on behalf of the 14th defendant purchaser. THE 3rd defendant had been impleaded as a party on the ground that he is the second mortgagee in respect of the original door No. 19, which included the present door Nos. 19-A, 19-B and 19-C and he also happened to be the husband of the auction purchaser. As already stated defendants 4 to 7 were the original owners of door No. 19 which was later sub-divided into door Nos. 19-A, 19-B and 19-C. among themselves. Pending the suit, the 7th defendant died and his legal representatives are defendants 9 to 13. THE 8th defendant is the auctioneering firm and the 14th defendant is the real auction-purchaser.

(2.) THE first defendant contended that the suit for redemption was not maintainable, that he was entitled to bring the property to sale in exercise of his powers under section 69 conferred under the document without recourse to a suit in a civil Court, that the sale held by the 8th defendant was valid and binding on the plaintiff and that the suit was liable to be dismissed. THE first defendant also contended that the alleged payment of Rs. 2.000 by the plaintiff to the first defendant towards the mortgage was not true and that it was not correct to state that only Rs. 2,450 was due under the mortgage. THE 14th defendant stressed that she was the bona fide purchaser for value in the auction held by the auctioneers and the sale cannot be questioned on any ground. THE defence of the other defendants were almost the same.

(3.) THE plaintiff preferred an appeal before the First Additional Judge, City Civil Court, Madras. THE lower appellate Court held, concurring with the trial Court, that the allegation of the plaintiff that he had paid Rs. 2,000 towards the mortgage to the first defendant was not true. THE lower appellate Court further held that the auction sale was collusive and not valid and binding on the plaintiff. THE lower appellate Court then proceeded to consider as to whether the plaintiff is entitled to redemption, but, held that he was entitled to redeem door No. 19-A alone and that too on payment of the two-third share of Rs. 4,000 with interest. THE reasonings for these findings are as follows: THE plaintiff had purchased door No. 19-A alone and he is also put in possession. By permitting the plaintiff to redeem his property alone, the defendants will not be in any way prejudiced. Since the property door No. 19-A was of an extent of 800 sq. ft., which is approximately two-third of the total extent the plaintiff should be permitted to redeem the mortgage over door No. 19-A on payment of the two-third of the mortgage money.