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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
S. Sulochana (Died) & Others
Versus
G. Abdul Kareem & Others
A.S. No. 105 of 1995
Decided On : 19-10-2010
Mortgage Property - Rights of Redemption - Transfer of Property Act, 1882 - Section 69 - Summary of Acts and Sections: The court discussed the rights of redemption under Section 69 of the Transfer of Property Act, 1882, and the legal provisions related to the power of sale by the mortgagee. The court emphasized the importance of notice and the requirements for extinguishing the equity of redemption. The judgment affirmed the absolute ownership of the property by the purchasers in an auction sale, highlighting the legal principles established in the decisions of Narandas Karsondas v. S.A.Kamtam and others, Purasawalkam Hindu Janopakara Saswatha Nidhi, Ltd. v. Kuddus Sahib and others, and Clara Mookerjea alias Smt.Mathuri devi v. Surendra Manilal Mehta and others.
Fact of the Case:
The First Appellant/First Defendant (deceased) failed to redeem the mortgage property, leading to an auction sale and subsequent purchase by the Respondents/Plaintiffs. The trial court decreed the suit in favor of the Respondents/Plaintiffs, directing the Defendants to vacate the property. The Appellants challenged the judgment, arguing non-joinder of parties and irregularities in the sale process.
Finding of the Court:
The court found that the Respondents/Plaintiffs had acquired absolute ownership of the property through the auction sale, and the First Appellant/First Defendant had lost her right of redemption by failing to pay the mortgage amount. The court rejected the Appellants' contentions regarding non-joinder of parties and irregularities in the sale process, affirming the trial court's judgment.
Issues: The issues included the right of the First Appellant/First Defendant to redeem the property, the acquisition of rights by the Respondents/Plaintiffs through auction sale, and the claim for damages by the Respondents/Plaintiffs.
Ratio Decidendi: The court's decision was based on the interpretation of Section 69 of the Transfer of Property Act, emphasizing the significance of notice and the requirements for extinguishing the equity of redemption. The court also considered the legal principles established in relevant case laws to determine the rights of the parties.
Final Decision: The court dismissed the appeal, affirming the trial court's judgment and decree, and upheld the absolute ownership of the property by the Respondents/Plaintiffs.
1. The First Appellant/First Defendant during her life time has preferred the present Appeal before this Court as against the Judgment and Decree dated 31.10.1990 in O.S.No.8539 of 1985 on the file of the Learned II Assistant Judge, City Civil Court, Chennai.
2. During the pendency of the Appeal, since the First Appellant/First Defendant died, her Legal Representatives, the second and third Appellants have been brought on record.
3. The trial Court viz., the Learned II Assistant Judge, City Civil Court, Chennai, on an appreciation of oral and documentary evidence on record, while passing the Judgement in the main suit filed by the Respondents/Plaintiffs has among other things observed that the First Appellant/First Defendant has not utilised her right of redeeming the suit property though she possessed the same and since the suit mortgage amount has not been paid she is not entitled to redeem the Mortgage property from the date of Auction sale of the suit property bided by the Plaintiffs and further, the trial Court has come to the conclusion that the Respondents/Plaintiffs have absolute right in the suit property and also that the damages claimed by the Respondents/ Plaintiffs in the suit are correct and resultantly, decreed the suit with costs and further directed the Defendants 1 to 4 to hand over the vacant possession of the suit property within four months from the date of their vacating.
4. Before the trial Court, 6 Issues have been framed for adjudication in the main case. On the side of the Respondents/ Plaintiffs witness PW1 has been examined and Ex.A.1 to Ex.A.15 have been marked. On the side of the Defendants, DW1 (First Appellant/ First Defendant since deceased) has been examined and Ex.B.1 and Ex.B.2 have been marked.
5. The point that arise for consideration in this Appeal are:
1. Whether the First Appellant/First Defendant (since deceased) has resided in the suit property in her own right?
2. Whether the Respondents/Plaintiffs have acquired right in the suit property by means of their purchase in Auction sale?
3. Whether the Respondents/Plaintiffs are entitled to claim a sum of Rs.2,000/-, Rs.1,500/-, Rs.2,500/- and Rs.2,000/-as damages from the Defendants 1 to 4 for the use and occupation of the respective portion of the suit premises for the period between 16.11.1984 and 15.09.1985?
4. Whether the Respondents/Plaintiffs are entitled to claim damages at Rs.200/-, Rs.150/-, Rs.250/- and Rs.200/- per month from the defendants 1 to 4 from 16.09.1985 onwards?.
6. The contentions, discussions and findings on Point Nos.1 and 2:
According to the Learned Counsel for the Appellants, the trial Court has committed an error in decreeing the suit because the fact that the Respondents/Plaintiffs have not established prima facie case in respect of their rights in regard to the suit property and as a matter of fact, the suit ought to have been dismissed by the trial Court for nonjoinder of parties.
7. The Learned Counsel for the Appellants urges before this Court that the trial Court has not adverted to the aspects of compliance of Section 69 of the Transfer of Property Act, 1882 by Pushpavathi Ammal before bringing the property to sale and in fact issuance of notice to the Legal Heirs of Rajammal is mandatory and moreover, other Legal Heirs have not been arrayed as Parties to the suit.
8. The Learned Counsel for the Appellants submits that the Mortgagee has not disclosed the details in regard to the disbursement of the sale price and further, it has committed an error in determining the damages without any basis and added further, the trial Court has not given any findings in respect of the conduct of the sale and the execution of Sale Deed in a suspicious circumstances and in a hurried manner.
9. In short, it is the contention of the Learned Counsel for the Appellants that the trial Court has not taken into account all the material aspects of the matter in a proper and real perspective and this has resulted
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