S SAROJINI Vs. NUNGAMBAKKAM SASWATHA DHANARAKSHAKA NIDHI LTD

JUDGEMENT

(1.) SEVERAL interesting questions of law were argued by learned counsel for appellants at length. But, unfortunately, most of them do not arise for consideration in case on the facts of the case.

(2.) THE facts are shortly these: THE plaintiff who died pending the second appeal, executed -mortgage of the suit property in favour of the 1st defendant on 28.10.1963 for a sum Rs.25,000. THE plaintiff executed a promissory note in favour of the 4th defendant who a suit thereon and in execution of the decree passed in that suit, purchased the equity redemption on 23.1.1969. THEreafter, the plaintiff executed a second mortgage in favour the second defendant on 20.5.1971 for a sum of Rs.10,000. THE plaintiff executed the mortgage in favour of the third defendant on 20.12.1971 for a sum of Rs.5,000. THE defendant who has been repeatedly demanding the amount due from the plaintiff first mortgage brought the property to sale in exercise of its power under Sec.69 of Transfer of Property Act and on 5.2.1972, the property was sold. THE 5th defendant was highest bidder and she became the purchaser. But, on 18.2.1972, the plaintiff filed present suit O.S.No.1470 of 1972 on the file of City Civil Court, Madras for a declaration the sale dated 5.2.1972 was invalid and null and void and for an injunction restraining first defendant from executing a sale in favour of the third defendant. As per the plaint, third defendant was the purchaser in the auction sale. THE 5th defendant was impleaded the plaintiff much later as the plaintiff found out that the purchaser was the 5th defendant.

(3.) THOUGH, an allegation is made in the plaint that the property was worth much more what it fetched in the auction and there was an offer by a person to purchase it for Rs.50,000 free from encumbrances, no evidence was produced before the court to substantiate plea. A sale deed dated 28.11.1974 said to relate to an adjacent property was filed as Ex.A in order to prove the value of the property. That sale deed related to a vacant land and not help the plaintiff to show that the suit property was sold for very low price on 5.2.1972. In fact, the details of the suit property are not given anywhere by the plaintiff either in plaint or in the evidence of P.W.1. The area of the land on which the suit building is situated is not given. The only description in the plaint is that the suit property is a ground and premises bearing D.No.7/A, South Gangai Amman Koil Street, Madras does not give the measurements of the property in order to show that it would have much more than what it did in the auction held by the first defendant. The plaintiff has examined any engineer or filed any document to show the value of the building on the property.