ELLAPPA NAIKER Vs. SIVASUBRAMANIA MANIAGARAN

JUDGEMENT

(1.) These petitions ask for the revision of two orders passed by the District Collector of Tinnevelly, in petitions presented to him under Section 205 of the Estates Land Act, against the orders of the Sub-Collector passed on two applications under Section 131 of the Estates Land Act.

(2.) The applications to the Sub-Collector purported to be made on behalf of a mortgagee of the holding, a portion whereof had been sold for arrears of rent. An objection was raised before the Sub-Collector that the applications should not be treated as properly presented, because Subbayya Naidu who purported to present the petitions was not an agent of the mortgagee in the sense contemplated by Secs.36 and 37 of the old Civil Procedure Code, corresponding to Rules 1 and 2 of Order 3 of the present Code. The Sub-Collector however treated that objection as not fatal; but, on the merits, he was of opinion that as deposed to by the Village Officers who had been examined as witnesses on the counter-petitioner's side, the mortgage relied on in support of the applications must have been discharged by a subsequent arrangement between the mortgagor and the mortgagee.

(3.) It does not appear to have been brought to the notice of the Sub-Collector that even admitting every statement of the counter-petitioner's witnesses to be true, no title has as yet been conveyed to the mortgagee in respect of the portion proposed to be sold to him and even the transfer of possession to him of the properties so intended to be sold would not in the present state of the law vest the title in him. If the title in the portion intended to be sold in discharge of the mortgage-debt had not passed, it is impossible to hold that the mortgage had been extinguished either. It was no doubt at one time held by a Full Bench of this Court that the transfer of possession in pursuance of an agreement to sell would suffice to convey title even in the absence of a registered deed of sale, but that view has now been overruled by a decision of the Privy Council.