NANUVIEN Vs. MUTHUSAMY DIKSHADAR AND 4 ORS

JUDGEMENT

(1.) A usufructuary mortgage for two years of two plots of land items Nos. 1 and 2 of the plaint schedule, for Rs. 170 was made in 1855 by the present 4 defendant, the father of the plaintiffs, to the deceased father of defendants Nos. 1 and 2. In execution of a money decree obtained by the father of defendants Nos. 1 and 2 in respect of a claim against the 4th defendant arising independently of the mortgage, the fourth defendant's equity of redemption in item No. 1 was brought to sale and purchased by the father of defendants Nos. 1 and 2 in 1870. [Here their Lordships state the facts relating to another item, about which they say the appeal was not pressed].

(2.) AS regards item No. 1 it was urged for the appellants that they were entitled to redeem their share at least of that item. With reference to the decisions in Muthuraman Chetty v. Ettappasami I.L.R. 22 M. 372 and Martanda Balakrishna Bhat V/s. Dhondo Damodar Kulkarni I.L.R. 22 B. 694 the former rests entirely upon the ground that the sale under which the purchaser claimed in that case was one brought about by the purchaser in violation of the provisions of Section 99 of the Transfer of Property Act. That section is not merely declaratory of what was previously accepted and enforced as law. Though the necessity for such an enactment was occasioned among other causes by the practice of mortgagees bringing the properties which formed the subject of their mortgages to sale without actual decrees for sale, yet the obligation or restriction imposed by the section was strictly new. Consequently to follow Muthuraman Ghetty V/s. Ettappasami I.L.R. 22 M. 372 in cases like the present would virtually be to give a retrospective operation to Section 99 of the Transfer of Property Act. Even assuming that the principle of the section is itself one to which a mortgagee may, as a matter of equity, be subjected apart from any statutory provisions, as apparently was the view taken in Martanda Balahritshna Bhat V/s. Dhondo Damodar Kulkarni I.L.R. 22 B. 694 still, it is clear, we ought not to extend it to cases like the present inasmuch as the purchase of a mortgagor's right of redemption by the mortgagee at a court sale brought about by the latter in respect of a claim independent of the mortgage was, prior to the passing of, the Transfer of Property Act so far as we know, understood in this Presidency to pass to the purchaser the whole interest as effectually against the sons of the judgment-debtor as against the judgment- debtor himself. Our attention has not been drawn to any decision to the contrary, and we have no hesitation in saying that we would be unsettling innumerable well-established titles if, as urged on behalf of the appellant, we were to attach to judicial sales perfected before the Transfer of Property Act came into force, the consequences which may rightly be annexed to a breach of the provisions of Section 99 of that Act in proceedings governed thereby. The second appeal is dismissed with costs.