In a redemption suit, the subsequent purchaser need not prove bona fide purchase without notice, and an unregistered assignment of mortgage is invalid.

The second appeal is filed against the Judgment and Decree passed in A.S.No.8 of 2004 dated 29.07.2004 on the file of the Learned First Additional District Judge, Fast-Track, Thanjavur, confirming the Judgment and Decree passed in O.S.No.357/1998 dated 24.07.2003 on the file of the Learned District Munsif, Thanjavur. The suit O.S.No.357 of 1998 is filed for redemption of the suit property and for possession.

2. The brief facts of the case is as follows:-

The suit property is originally belonged to one Kalaiyalagan, he had usufructuarly mortgaged the property to one R.Murugaian by a registered mortgage deed dated 10. 1989 for a sum of Rs.10,000/-and the period of mortgage is seven years.

3.The plaintiff purchased the suit property by a sale deed dated 03. 1988. The mortgage period was over as early as 010. 1996. Therefore, the plaintiff issued a notice to the mortgagee and also to one V.Annadurai, who was in possession of the property under an arrangement with the mortgagee. As there was no reply, the suit is filed for redemption of mortgage and for possession against the mortgagee and as well as against the person who is in possession.

4. The first defendant/mortgagee remained ex-parte. The second defendant contested the suit. According to the second defendant, by a sale agreement dated 27.02.1995, the said Kalaiyalagan agreed to sell the property to the second defendant for a sale consideration of Rs.2,87,625/-and also received an advance amount. The sale has to be executed within six months and after redemption of the usufructuary mortgage. However the said Kalaiyalagan didnt redeem the mortgage and was prolonging the sale. Meanwhile the first defendant approached the second defendant for the return of mortgage amount of Rs.10,000/-and agreed to assign the mortgage with the second defendant. Therefore, the second defendant paid a sum of Rs.10,000/- on 26.07.1995 with the consent of the original mortgagor, namely Kalaiyalagan and obtained a made over from the first defendant. He had put up a Thatched Shed and presently one Valarmathi wife of the Second defendants brother-in-law is in possession and enjoyment of the property by running a firewood shop and also residing there. The original owner was evading sale and the second defendant was always ready and willing to perform his part of contract. The second defendant was about to file a suit for specific performance and only to defraud the agreement holder the plaintiff and the said Kalaiyalagan had created a sale deed which is a sham and nominal. Even otherwise, the possession of the second defendant is protected under section 53(a) of the Transfer of Property Act.

5. Based on the above averments, the trial court framed the necessary issues, whether the plaintiff is entitled for redemption of suit property and whether the plaintiff is entitled for possession. On considering the oral and documentary evidences, the trial court found that the second defendant was an agreement holder under a deed dated 22. 1995 and has also taken possession under a made over deed dated 26.07.1995 and knowing fully well that the property is under some encumbrances the plaintiff has purchased the property and therefore he is not a bonafide purchaser without notice and for valuable consideration and the trial court also found the possession of the second defendant is protected under section 53(a) of the Transfer of Property Act and therefore dismissed the suit.

6. Aggrieved by the Judgment and decree of the trial court the plaintiff has preferred a appeal before the First Additional District Judge, Thanjavur in A.S.No.8 of 2004. The first appellate court have also found that the second defendant is in possession in pursuant to the sale agreement and is protected under section 53(A) of The Transfer of Property Act and had also found that the plaintiff is not a bonafide purchaser without notice and for valuable consideration and has dismissed the appeal.

7. Aggrieved by the Judgment and