EGMORE BENEFIT SOCIETY, 3RD BRANCH, LIMITED, BY ITS SECRETARY AND TREASURER, T G DAMODARA MUDALIAR Vs. KABURUPAMMAL

JUDGEMENT

(1.) This is a suit by the Egmore Benefit Society for the recovery of possession and mesne profits of the property described in the schedule to the plaint on foot of a purchase made by the Society in a sale held by them under Section 69 of the Transfer of Property Act; in the alternative, if the sale is held to be illegal or void for any reason, the suit is for recovery of the amount due under the mortgage executed by defendants 1 and 2 (husband and wife) by sale of the mortgaged property.

(2.) The mortgage deed is dated 7 January, 1937, and is for a sum of Rs. 4,350 with interest at 6 1/4 per cent. per annum and there is provision that in default of payment of arrears of subscription and interest, the arrears were to carry interest at 2 pies per rupee per month, which works out at 12 1/2 per cent. per annum. The deed provides for the exercise by the mortgagors of the power of sale provided in the Transfer of Property Act and there is a clause authorising the Society to purchase the property as the highest bidder at any such sale. Default having been committed in the payment of the subscription and interest, the property was brought to sale by the Society on 15 April, 1940 and was purchased by the Society itself for a sum of Rs. 4,000 leaving a balance of Rs. 279-2-0 still due under the mortgage on that date. On the basis of this sale the Society now seeks to recover possession of the property from the defendants together with mesne profits at Rs. 50 per mensem. If the sale is held to be void or inoperative, the plaintiffs want a mortgage decree for sale for the amount due to them.

(3.) It has been already stated that defendants 1 and 2 are the mortgagors. The property stands in the name of the 1 defendant, the wife, having been purchased by her under a sale deed dated 15 September, 1936, from the Nedungadi Bank. The deed was executed not only by her but by her husband who acted in the transaction also on behalf of his minor sons Mohanasundara and Nagaraja, who are impleaded as defendants 3 and 4 in the suit. Mohanasundara was a minor on the date of the mortgage deed but is now a major. Nagaraja continues to be a minor, and his guardian ad litem is his elder brother, the 3 defendant.