CHINNAKANNU PADAYACHI Vs. PARAMASIVA MUDALIAR

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiff who sued for redemption of the plaint-mentioned mortgage which was effected in favour of defendant 1's father. Both the lower Courts have dismissed the plaintiff's suit on the ground that he had no subsisting interest in the properties in question in order to entitle him to redeem the mortgage. The properties in question were sold in Court auction in execution of a simple money-decree in O. S. No. 164 of 1902, on the file of the District Munsif's Court of Cuddalore, on 23 April 1908: vide Ex. 5. The purchase was in the name of defendant 2 and it has been found by the lower appellate Court that that purchase was benami for defendant l's father who was the mortgagee. The provisions of Section 99, Transfer of Property Act would apply to this purchase as it was made before the Civil Procedure Code of 1908 came into force. There is no doubt that the purchase in Court auction by defendant 1's father in the name of defendant 2 was obnoxious to the provisions of Section 99, Transfer of Property Act. The question is whether that sale is void and as such a nullity or is only voidable. This question has now been set at rest by a number of recent decisions of this and other High Courts. It has been held by a Division Bench of this Court in a decision reported as Arjuna Reddi V/s. Venkatachala Asari [1917] 32 M. L. J. 525 that a sale in contravention of the provisions of Section 99, Transfer of Property Act, is voidable and not void, and if the mortgagor fails to take any objection to the confirmation of the sale on the ground that it was contrary to Section 99, Transfer of Property Act, and the sale is confirmed, the mortgagor has no right to redeem the mortgage. This view is in conformity with the decision of the Full Bench of the Allahabad High Court in Lal Bahadur Singh V/s. Abharan Singh [1917] 37 All. 165 and also a previous decision of this Court in Venkayya V/s. Surayya Garu [1906] 30 Mad. 362 The question has been exhaustively dealt with in the Full Bench decision of the Calcutta High Court reported in Uttam Chandra Daw V/s. Raj Krishna Dalai [1920] 47 Cal. 377 The view expressed therein is to the effect that the mortgagor or his transferee cannot successfully maintain a suit for redemption of the property without first getting the sale set aside, because the sale is only voidable and not void. The ratio decidendi is clearly against the appellant's contention that the sale in question is void. Assuming that it was open to the plaintiff to get the sale set aside in a separate.suit on the ground that it was in contravention of Section 99, Transfer of Property Act, he should have done so within three years at the most from the date of the sale. . That period has long ago expired.

(2.) It is further contended that, inasmuch as the purchase in Court auction was by defendant 1's father (the mortgagee) in the name of defendant 2, it must be deemed to be a purchase made by the decree-holder without the permission of the Court. The question in whether such a purchase is void or voidable. This question has also been settled by the Privy Council in the decision reported in Radha Krishna V/s. Bisheshwar Sahay A. I. R. 1922 P. C. 336 In that case, it would appear that the decree-holder applied for permission to bid at the auction sale and that permission was refused by the Court; and that nevertheless he purchased the property through a benamidar. Even then their Lordships have held that the effect of this was to render the sale voidable and not void, and consequently a suit to set aside the sale must be brought within one year from the confirmation of the sale under Art. 12-A, Sch, 1, Limitation Act. In this view also the plaintiff's remedy having been long ago barred he must be non suited in his present action for redemption of the mortgage.

(3.) One other contention was raised by the learned vakil for the appellant for the first time in the second appeal and that is, that the mortgagee, defendant 1's father, must be deemed to be a trustee for the mortgagor or his heirs in respect of the property which was purchased in contravention of the provisions of Section 99, Transfer of Property Act. There is no such plea in the plaint, nor was this contention raised before either of the lower Courts, and this plea is also conspicuous by its absence in the memorandum of grounds filed in the second appeal. Be this as it may, I should think that a suit by the plaintiff to enforce the trust is also barred by limitation. This question has been considered in the Full Bench decision in Uttam Chandra Daw V/s. Raj Krishna Dalal [1920] 47 Cal. 377 above referred to. It has beed held that Section 10, Limitation Act would not apply to a suit of this kind and according to the opinion of the learned Chief Justice such a suit would be governed by Art. 120, Limitation Act: vide the observations of his Lordship at p. 396 of 47 Cal. The opinion of Mr. Justice Woodroffe is to the effect that neither Art. 148 nor Section 10, Limitation Act, would apply to such a suit: vide also the observations of Chatterji, J., at p. 414. [47 C.]. In any view, the plaintiff is not entitled to maintain the suit for redemption unless he gets the sale evidenced by Ex. 5 set aside. Any suit for that purpose is now barred by limitation.