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Madras High Court
KAILASAM
Shanmugha Nadar - Appellant
Versus
Sivan Pillai - Respondent
Decided On : 09/03/1965
MORTGAGE - REDEMPTION - RIGHT OF PUISNE MORTGAGEE TO REDEEM PRIOR MORTGAGE - AUCTION PURCHASER IN EXECUTION OF SALE BY PRIOR MORTGAGEE - RIGHT TO REDEEM AUCTION PURCHASER IN SALE BY PUISNE MORTGAGEE - PRIORITY OF DATE OF SALE CARRIES WITH IT RIGHT TO POSSESSION.
Fact of the Case:
The plaintiff, as an auction purchaser in execution of a sale by a prior mortgagee, sought to redeem the auction purchaser in a sale by a puisne mortgagee, where the puisne mortgagee had a right to redeem. The conflict was between the auction purchasers in the two sales, with the puisne mortgagee not being impleaded in the prior mortgagee's suit and vice versa.
Finding of the Court:
The court held that the right of the puisne mortgagee to redeem a prior mortgage cannot be prejudiced by a court sale at the instance of the prior mortgagee without impleading the puisne mortgagee. The right of redemption of the parties was not considered in these cases.
Issues: Whether the auction purchaser in execution of the sale by the first mortgagee held earlier is entitled to redeem the auction-purchaser in a sale by a puisne mortgagee held subsequently.
Ratio Decidendi: The court reasoned that a simple mortgagee has no right to possession and the right to possession remains with the mortgagor. The rights of persons thus acquired cannot be prejudiced by the conduct of a prior mortgagee filing a suit to recover the money by sale of the properties without bringing them on record. The right of a prior simple mortgagee cannot be enlarged by his omission and he cannot take advantage of his own omission.
Final Decision: The court dismissed the appeal filed by the plaintiff, holding that the plaintiff was not entitled to redeem and dismissed the appeal with costs. The other two appeals were also dismissed with costs.
All the suits were taken on appeal to the District Court of Nagarcoil and the District Court decreed O.S. 665 of 1124 and remanded the other three suits for retrial of the disputes of the parties in one consolidated suit and directed the plaintiff in O.S. 297 of 1124 to implead all persons who claim title and possession under the various mortgages and court sales in O.S. 904 of 1127 and 320 of 1105. It directed the plaintiff in O.S. 297 of 1124 to amend the plaint and convert the suit into one of title and for partition of his share in the property. It also directed that the rights of the plaintiff in the other three suits should be decided in O.S. 297 of 1124. Accordingly the plaint in O.S. 297 of 1124 was amended as one for declaration of title, partition and redemption of marayapattom.
2. As the principal suit O.S. 297 of 1124 and the other suits relate to different portions of the same survey number, it is sufficient if O.S. 297 of 1124 is dealt with. The plaintiff in O. S 297 of 1124 is the appellant in S.A. 1679 of 1961. The dispute in O.S. 297 of 1124 relates to one acre 15 cents in the southern portion of S. No. 63-A, a total extent of 2 ac. 84 cents. The property originally belonged to two brothers, Thammanatham Vaithyan and Thammanathan Chevithian. Vaithian had three sons, Thammanathan, Gnanamuthu and Savarinandan. On the death of Vythian these three sons succeeded to his estate. On 19-2-1094 Chevithian executed an othi and kuzhikanom to his brother's sons, Thammanathan, Gnanamuthu and Savarianandan. Thus, the three sons were in possession of one acre 15 cents as jenmis and the other half as mortgagees.
On 6-7-1904, under Ex. M they executed a Chitti hypothecation bond in favour of one Vedamanickam of their half share in the jenmom right and the other half share of the mortgagee right of Cravithaian. Vedamanickam filed a suit O.S. 320 of 1100 on the mortgage and obtained a decree Ex. C. He assigned his rights to one Ummini Mathavan. Mathavan brought the property to sale in execution of the decree and purchased the same under Ex L on 31-9-1105. He got delivery through court on 21-11-1105. He thus became entitled to the jenmom right over one half and the mortgage right over the other remaining half. Mathavan assigned his right in favour of the plaintiff on 27-1-1121. Out of one acre 15 cents 43 cents in the northern portion was acquired by the Govermnent for a market and the remaining 72 cents in the southern portion is now in dispute. The plaintiff released the mortgage right in favour of his son, the 6th defendant, retaining the jenmom right over one half of the property.
3. Vaithiyan and Chevithian, the brothers who originally owned the property, jointly executed a mortgage in favour of Gnanaprakasam, Savarimuthu and Thammanathan Noyyal of a portion of the A schedule property being the B schedule property under Ex. E., on 13-1-1072. The othi right regarding the B schedule property subsequently devolved on one Subramania, and Subramania executed a marayam lease under Ex. G on 8-12-1101 to one Thanu Pillai. Subramania, the mortgagee, died and his wife Krishnammal, who got the mortgage right, released her right in favour of the plaintiff under Ex. F on 21-9-1123. The first defendant took an assignment of the marayam lease from Thanu Pillai, and the 2nd defendant is in possession of B schedule property. In the suit the plaintiff prayed for a declaration of his title and for partition by metes and bounds of his share in the A schedule property and also for redemption of the marayam lease in respect of the B schedule property. According
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