A mortgagee cannot purchase the property himself, and the court emphasized the importance of adhering to this principle. The court also clarified the nature of the provision for enhanced interest and deemed the entitlement to the property under a will irrelevant in the context of the suit.

Chandrasekhara Ayyar, J.

1. This is a suit by the Egmore Benefit Society for the recovery of possession and mesne profits of the property described in the schedule to the plaint on foot of a purchase made by the Society in a sale held by them under Section 69 of the Transfer of Property Act; in the alternative, if the sale is held to be illegal or void for any reason, the suit is for recovery of the amount due under the mortgage executed by defendants 1 and 2 (husband and wife) by sale of the mortgaged property.

2. The mortgage deed is dated 7th January, 1937, and is for a sum of Rs. 4,350 with interest at 6 1/4 per cent. per annum and there is provision that in default of payment of arrears of subscription and interest, the arrears were to carry interest at 2 pies per rupee per month, which works out at 12 1/2 per cent. per annum. The deed provides for the exercise by the mortgagors of the power of sale provided in the Transfer of Property Act and there is a clause authorising the Society to purchase the property as the highest bidder at any such sale. Default having been committed in the payment of the subscription and interest, the property was brought to sale by the Society on 15th April, 1940 and was purchased by the Society itself for a sum of Rs. 4,000 leaving a balance of Rs. 279-2-0 still due under the mortgage on that date. On the basis of this sale the Society now seeks to recover possession of the property from the defendants together with mesne profits at Rs. 50 per mensem. If the sale is held to be void or inoperative, the plaintiffs want a mortgage decree for sale for the amount due to them.

3. It has been already stated that defendants 1 and 2 are the mortgagors. The property stands in the name of the 1st defendant, the wife, having been purchased by her under a sale deed dated 15th September, 1936, from the Nedungadi Bank. The deed was executed not only by her but by her husband who acted in the transaction also on behalf of his minor sons Mohanasundara and Nagaraja, who are impleaded as defendants 3 and 4 in the suit. Mohanasundara was a minor on the date of the mortgage deed but is now a major. Nagaraja continues to be a minor, and his guardian ad litem is his elder brother, the 3rd defendant.

4. The 2nd defendant has filed no written statement and does not appear. The 1st defendant impugns the validity of the sale held under Section 69 of the Transfer of Property Act and contends that it is a void one because the purchase was by the mortgagees themselves. There is" a plea that the plaintiffs agreed after the sale to take a fresh mortgage for Rs. 4,000 and they must be compelled to stand by this agreement. But no issue was taken on this plea and it was not pressed because it is on the face of it unsustainable. It is said that the provision for payment of interest at 12 1/2 per cent. is in the nature of a penalty and should be relieved against; and that mesne profits at Rs. 50 per mensem is excessive. Defendants 3 and 4 raised an additional contention, namely, that the property .belongs to them in their own right under the will of their grandfather Arumugha Nadar, which was probated in O. P. No. 106 of 1913.

5. The sale in favour of the plaintiffs must be held to be invalid. A mortgagee exercising a power of sale under Section 69 of the Transfer of Property Act cannot purchase the property himself. This is such a well-established proposition that it cannot be disputed. But what is argued on behalf of the plaintiffs is that there is a contract in the mortgage deed authorising the mortgagee to make the purchase, if he happens to be the highest bidder at the sale. The law as understood with reference to Section 69 of the Transfer of Property Act is that the mortgagee cannot purchase the property and the Act does not save contracts between the parties to the contrary. To allow such a contract would be to negative altogether the provision based on public policy that the equity of redemption should not be destro