Auction sale by mortgagee, a trustee.

Mishra, J.:

Plaintiff has appealed against the judgment of learned single Judge of this in C.S.No.325 of 1975, dismissing his suit for a declaration that the sale alleged to have held on 30.6.1970 by the seventh defendant in the suit at the instance and under instructions of the first defendant is null and void, and not binding on the plaintiff and not convey any title to the third defendant in the suit property, and that the sale deed 16th August, 1971, is null and void and not binding on the plaintiff, and does not convey transfer any right to the third defendant in suit, as also for a direction to the defendants 3 in the suit to render a true and proper account of the income and expenses from 30.6.1970 till date of suit, for reconveyance of the property by defendants 1 and 2, for possession the suit property and damages.

2. The property bearing No.2, Dr.Singaravelu Street, T.Nagar, Madras-17 (described Schedule A to the plaint) according to the plaintiff, originally stood in the name Kannammal, the neither of the plaintiff and defendants 4 and 5 and grandmother of the defendant, having been purchased by the father of the plaintiff late Kannabi benami in the name of the mother of the plaintiff. During their lifetime, the mother a deed of simple mortgage in favour of one Dr.B.C.Raj for a sum of Rs.40,000 with at 12 per cent per annum with respect to the suit property. Later, in or about November, 1968, since, according to the plaintiff, the mortgagee threatened to bring the suit to auction sale, in exercise of the power of sale under Sec.69 of the Transfer of Property Act, granted to the mortgage deed in his favour and since the second defendant in the suit (since dead substituted by his legal heirs and representatives) offered to pay off the mortgage due to Dr.Raj, a simple mortgage deed was executed by the mother in favour of the defendant in the suit (daughter of the second defendant). In or about December, however, the first defendant obtained a deed of usufructuary mortgage from the plaintiff, deceased brother K.Narayanaswami and the sixth defendant (since the plaintiff’ s mother died) with respect to the very same property on condition inter alia that he would collect rentals from the tenants in the premises and the Kaly-ana Mandapam which existed in suit property, pay off the charges due to the Municipal and other Governmental authorities, etc., and “ also pay the monthly interest due to the 1st defendant in respect of her simple mortgage” . The first defendant, according to the plaintiff, was a party to this arrangement by agreeing to collect the interest from the second defendant directly without looking to plaintiff. This arrangement continued for quite some time. The second defendant, who bound to pay the monthly interest due to the first defendant on account of her simple mortgage, however, defaulted. One of the conditions in the usufructuary mortgage in favour of the second defendant was that in case default was committed by him in complying any of the terms and conditions of the usufructuary mortgage in favour of the second defendant, the same would be cancelled and the second defendant would be bound deliver back possession of the mortgaged property to the mortgagors; and notwithstanding, however, these conditions and the default committed by the second defendant, the defendant, according to the plaintiff, without any demand as required under Sec.69 of Transfer of Property Act and without recourse to the second defendant, her own father who alone, according to the plaintiff, was responsible for paying the interest to her from out of the rental collected out of the property and from whom she had agreed to receive interest as also payments of principal amount, attempted to bring the suit property auction sale on or about 30th June, 1970, through the auctioneers Chandramani Company, the seventh defendant in the suit. The plaintiff then filed a suit O.S.No.3018 1970 on the file of the City Civil Court,