INDIRA DEVARAJ BHAT Vs. S SRINIVAS

JUDGEMENT

(1.) THE wife of a mortgagee claims she has purchased the property in a sale out of Court, at the instance of the assignee of the interest from her husband. THEre is no proof of notice of sale and the bid was for a low price and no evidence of actual sale. Her suit was dismissed and she is the aggrieved appellant.

(2.) THE facts in the plaint are as follows: THE suit property belonged to the first respondent who had purchased it on 08-05-1958. He executed a simple mortgage on 07-05-1970 in favour of one Alagammai Achi for a sum of Rs. 20,000/- with interest at 12%. THE mortgage deed contained conditions with regard to right of sale under Section 69 of the Transfer of Property Act. Neither the principal nor the interest was paid. THErefore, the said Alagammai Achi brought the schedule property for sale through auctioneers on several occasions, but the sale was averted. On 27-08-1981, Alagammai Achi assigned the mortgage in favour of Dr. D. N. Bhat. THE documents of title were handed over to Dr. D. N. Bhat. He in turn assigned his interest to one V. S. Sambandha Mudaliar under a deed dated 23-11-1981. This assignee issued a notice dated 12-01-1982 calling upon the first respondent to pay the entire principal and interest due. But neither the principal nor the interest was paid. THEreafter, Sambandha Mudaliar handedover the documents of title to the Government Auctioneers, the fifth respondent for sale under section 69 of the T. P. Act. This was advertised in "dinakaran" newspaper dated 01-05-1982 and in "dinamalar" Newspaper dated 30-04-1982 and pamphlets were also distributed to the general public. THE auction was also scheduled to be held on 05-05-1982 at the premises of the suit property. THEre was sufficient publicity and there were several bidders. THE plaintiff-appellant was declared as the highest bidder and her bid of rs. 46,500/- was accepted. THE bid amount is paid to the fifth respondent who paid the amount due under the mortgage to Sambandha Mudaliar. THE mortgage was discharged and cancelled. THEreafter, the fifth respondent sent a notice to the first respondent on 18-05-1982 calling upon him to receive the balance. THEre was no response to this. THEreafter, the said Sambandha Mudaliar, executed a sale deed on 30-07-1982 in favour of the appellant and the same was registered. She has therefore, become the absolute owner of the property and has taken symbolic possession. THEre was a tenant in this suit property who had been inducted by the first respondent. He vacated the property all of a sudden without informing the appellant. THE respondents 1 to 4 in collusion have entered the suit property and are occupying the same illegally. THE appellant sent a telegram on 26-10-1982 to receive the balance amount and to vacate the premises. She has also sent a notice through the counsel, the respondents failed and neglected to comply with the notice. Since they are in occupation illegally and wrongfully, the appellant is entitled to mesne profits. THE suit was therefore, filed for declaration and recovery of possession and rendition of accounts. THE plaintiff is the appellant. THE second, third and fourth respondents are the wife, daughter and son of the first respondent. THE respondents 6 and 7 have been impleaded by order dated 12-01-2007. THEre have been applications for withdrawal of appeal which withdrawal was denied and the appeal was restored, but it is not necessary to go into those aspects now.

(3.) THE learned counsel for the appellant submitted that section 69 (2) (a) and (b) must be considered alternatively. If the mortgagee is in arrears of rent for the period mentioned in subsection (2) (b), then no notice need be given and relied on State of Mysore Vs. Dasappa Naidu (1968 (1)Mys. LJ 69 ). THE learned counsel also submitted that the Trial Court had erred in finding that the sale is irregular because the bid of the appellant was far below the market value and relied on P. L. Chakrapani Naidu Vs. T. Gopal mudaliar (1972 (II) MLJ 390), where a Division Bench of this Court held that merely because the property does not fetch a fair price, the sale should not be adjourned. In other words, the low price is not enough to infer collusion. According to the learned counsel, a sale was properly conducted and the appellant was the highest bidder, there is no illegality in the sale and the trial court had erroneously set aside the sale. 5. Mr. T. V. Ramanujam, learned Senior Counsel appearing for the Mortgagors submitted that the question whether notice is necessary and whether this is a case falling under Section 69 (2) (a) or 69 (2) (b) of the transfer of Property Act, does not required to be answered, since the defence of the respondents / defendants that there was no sale at all on 05. 05. 1982 has been accepted by the learned Judge and there is no evidence to prove that there was sale on that date.