K MOHANAKRISHNAN Vs. SEETHA NATARAJAN

JUDGEMENT

(1.) PLAINTIFF has appealed against the judgment of learned single Judge of this in C.S.No.325 of 1975, dismissing his suit for a declaration that the sale alleged to have held on 30.6.1970 by the seventh defendant in the suit at the instance and under instructions of the first defendant is null and void, and not binding on the plaintiff and not convey any title to the third defendant in the suit property, and that the sale deed 16th August, 1971, is null and void and not binding on the plaintiff, and does not convey transfer any right to the third defendant in suit, as also for a direction to the defendants 3 in the suit to render a true and proper account of the income and expenses from 30.6.1970 till date of suit, for reconveyance of the property by defendants 1 and 2, for possession the suit property and damages.

(2.) THE property bearing No.2, Dr.Singaravelu Street, T.Nagar, Madras-17 (described Schedule A to the plaint) according to the plaintiff, originally stood in the name Kannammal, the neither of the plaintiff and defendants 4 and 5 and grandmother of the defendant, having been purchased by the father of the plaintiff late Kannabi benami in the name of the mother of the plaintiff. During their lifetime, the mother a deed of simple mortgage in favour of one Dr.B.C.Raj for a sum of Rs.40,000 with at 12 per cent per annum with respect to the suit property. Later, in or about November, 1968, since, according to the plaintiff, the mortgagee threatened to bring the suit to auction sale, in exercise of the power of sale under Sec.69 of the Transfer of Property Act, granted to the mortgage deed in his favour and since the second defendant in the suit (since dead substituted by his legal heirs and representatives) offered to pay off the mortgage due to Dr.Raj, a simple mortgage deed was executed by the mother in favour of the defendant in the suit (daughter of the second defendant). In or about December, however, the first defendant obtained a deed of usufructuary mortgage from the plaintiff, deceased brother K.Narayanaswami and the sixth defendant (since the plaintiff" s mother died) with respect to the very same property on condition inter alia that he would collect rentals from the tenants in the premises and the Kaly-ana Mandapam which existed in suit property, pay off the charges due to the Municipal and other Governmental authorities, etc., and " also pay the monthly interest due to the 1st defendant in respect of her simple mortgage" . THE first defendant, according to the plaintiff, was a party to this arrangement by agreeing to collect the interest from the second defendant directly without looking to plaintiff. This arrangement continued for quite some time. THE second defendant, who bound to pay the monthly interest due to the first defendant on account of her simple mortgage, however, defaulted. One of the conditions in the usufructuary mortgage in favour of the second defendant was that in case default was committed by him in complying any of the terms and conditions of the usufructuary mortgage in favour of the second defendant, the same would be cancelled and the second defendant would be bound deliver back possession of the mortgaged property to the mortgagors; and notwithstanding, however, these conditions and the default committed by the second defendant, the defendant, according to the plaintiff, without any demand as required under Sec.69 of Transfer of Property Act and without recourse to the second defendant, her own father who alone, according to the plaintiff, was responsible for paying the interest to her from out of the rental collected out of the property and from whom she had agreed to receive interest as also payments of principal amount, attempted to bring the suit property auction sale on or about 30th June, 1970, through the auctioneers Chandramani Company, the seventh defendant in the suit. THE plaintiff then filed a suit O.S.No.3018 1970 on the file of the City Civil Court, Madras, for a declaration that the first defendant not entitled to bring the suit property to sale under Sec.69 of the Transfer of Property and also for a consequential permanent injunction restraining the 1st defendant from bringing the suit property to auction sale. THE plaintiff impleaded the 2nd defendant as of the defendants in the suit, and applied in I.A.No.9454 of 1970 for an interim injunction restrain defendants 1 and 2 in the suit from bringing the suit property to auction sale. Sixth Assistant City Civil Court Judge, however, ordered notice returnable by 4.7.1970. According to the plaintiff, he took notice to the auctioneer that day itself before the auction sale, but taking advantage of the fact that interim injunction was not granted, the defendant, who was not at all at Madras at that time, acting through the 2nd defendant, purporting to exercise the power of sale under Sec.69 of the Transfer of Property Act under the mortgage deed, and " in active collusion with the 2nd defendant, went through fraudulent sale which was solely aimed at knocking off the property worth more than lakhs, for a very low price and it was fraudulently declared that the suit property had sold for Rs.60,000" . THE seventh defendant filed an affidavit in O.S.No.3018 of 1970 7.7.1970 stating that the property had been sold on 30.6.1970 for Rs.60,000. THE plaintiff again approached the City Civil Court with a request in I.A.No.9611 of 1970 for an injunction restraining the defendants 1 and 2 herein (defendants 1 and 2 in that suit) from executing sale deed in favour of the alleged purchaser in furtherance of the auction sale of property alleged to have been held on 30.6.70. This time also the learned City Civil only ordered notice to defendants 1 and 2. When the said suit came up for final disposal, defendants represented that the sale deed had already been executed. Ultimately, 23.8.1971, the plaintiff withdrew the suit (O.S.No.3018 of 1970) with permission to suit for appropriate relief.

(3.) MANY facts stated in the written statement filed on behalf of the 2nd defendant are not variance with the statements of facts in the plaint that the 1st defendant obtained a simple mortgage for a consideration of Rs.44,000 and that he himself obtained a usufructuary mortgage sum of 14,000. His version, however, is that the suit property belonged exclusively Kannammal, who executed a deed of first simple mortgage along with her K.Narayanaswami (since deceased) as surety in favour of Sakru Chand Sowcar on August, 1952 for Rs.7,900 and later Kannammal borrowed various amounts from Purasaw-alkam Hindu Janopakara Saswatha Nidhi, and executed three mortgages over suit property on 12.6.1958 for Rs.8,000 on 12.6.1958 for Rs.4;000 and on 5.10.1969 Rs.6,500 respectively. She borrowed a further sum of Rs.5,000 under another deed mortgage dated 19.4.1965 from one Swa-minatha Iyer, who advanced a further Rs.3,000 on promissory note dated 21.2.1966, and for the purpose of discharging aforesaid mortgages and the debt covered by the promissory note and for other purposes, she borrowed a further sum of Rs.44,000 from one Dr.G.B.Raj, and executed a deed simple mortgage on 14.9.1967 on the security of the suit property. Since Kannammal defaulted in the payment of the principal and interest payable to the mortgagee, Dr.G.B.Raj, he brought the property to sale under Sec.69 of the Transfer of Property Act. Kannammal filed the suit O.S.No.4358 of 1968 on the file of the City Civil Court, Madras praying injunction restraining the mortgagee from bringing the property to sale to be held 1.11.1968. At that time, in the auction at the instance of the mortgagee Dr.Raj, auction held on 1.11.1968. The suit property was sold, and in the said auction, the 2nd defendant was the purchaser. Kannammal died on 9.9.1968. The plaintiff and his deceased Narayanaswami came on record in the suit O.S.No.4358 of 1968 on the file of the City Court and applied for an injunction in that suit to restrain the mortgagee from executing sale deed. That application was dismissed. However at the intervention of friends mediators, the sale held on 1.11.1968 was not given effect to and concluded, and an agreement was entered into. As per the agreement, Dr.Raj along with the deceased Narayanaswami and the plaintiff agreed that the mortgage dated 14.9.1967 should assigned in favour of the 1st defendant (daughter of the 2nd defendant). Accordingly, 11.12.1968, a registered deed of assignment was executed by Dr.Raj in favour of defendant assigning the simple mortgage deed dated 14.9.1967 in her favour. 11.12.1968, the plaintiff along with his deceased brother K.Narayanaswami and Parthasa rathi, his son's son executed a deed of usufructuary mortgage for a consideration Rs.14,000. The 2nd defendant was accordingly put in possession of the suit property. the recital of the usufructuary mortgage, the 2nd defendant was empowered to realize rental collection, pay all the municipal and other public charges due and payable of the suit property, incur necessary expenses for the upkeep and maintenance of and appropriate the balance towards the interest on the principal sum of Rs.14,000 under the deed of usufructuary mortgage dated 11.12.1968. Further, according to defendant, it was also specifically agreed that the balance of realisation should towards the interest due and payable in respect of the 1st mortgage dated 14.9.1967 was assigned in favour of the 1st defendant. Coming to the question of maintenance accounts, the 2nd defendant has said: