JUDGMENT :

(Prayer : Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree in A.S.No.19 of 2016 dated 13.07.2022 on the file of the learned III Additional Judge, City Civil Court, Chennai, reversing the decree and judgment in O.S.No.10802 of 2009 dated 15.04.2015 on the file of the VI Assistant Judge, City Civil Court, Chennai.)

1. This Second Appeal has been filed as against the judgment and decree dated 13.07.2022 passed by the learned III Additional Judge, City Civil Court, Chennai, in A.S.No.19 of 2016, reversing the judgment and decree dated 15.04.2015 passed by the learned VI Assistant Judge, City Civil Court, Chennai, in O.S.No.10802 of 2009, thereby decreed the suit.

2. The appellant is the first plaintiff and the respondents are the defendants. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.

3. The case of the plaintiffs in brief is that the first plaintiff is the daughter and the deceased second plaintiff is the mother of one Ramaswamy, who is elder brother of the defendants 2 to 4. The said Ramaswamy and his younger brother viz., the second defendant jointly purchased an immovable property bearing Plot No.5, Verghese Avenue, Ashok Nagar, Chennai – 600 083, by the registered sale deed vide document No.1174 of 1978. They were in joint possession and enjoyment of the suit property. While being so, the said Ramaswamy died intestate leaving behind his wife the fifth defendant herein and his daughter viz., the first plaintiff then a minor and his mother the second plaintiff as his legal heirs who succeeded jointly the 50% of undivided share of the suit property. The said Ramaswamy was predeceased to his father viz., Shanmugathevar and subsequently on 04.01.2002 the said Shanmugathevar also died intestate.

3.1. After demise of the father of the first plaintiff, there was dispute among the family members as such the fifth defendant was coerced and compelled to execute the release deed dated 29.01.1983 registered vide document No.6 of 1983 in respect of the suit schedule property. It was executed by the fifth defendant on her behalf and also on behalf of her minor first plaintiff, in favour of the defendants 2 to 4 herein. However, all are in joint possession and enjoyment of the suit schedule properties. The said release deed executed without any prior Court permission on behalf of the first minor plaintiff by the fifth defendant. Therefore, it is void and nonest in the eye of law.

3.2. While being so, the defendants 6 & 7, by the paper publication dated 28.08.2009, published as if the entire property is mortgaged with them created by the second defendant for the alleged due payable in the account of the first defendant/company. Thereafter, the plaintiffs came to know that the suit property is scheduled to be sold in public auction on 29.09.2009. The suit property, taking advantage of the release deed, the second defendant has created mortgage deed with the seventh defendant in which, neither the plaintiffs nor the fifth defendants were parties to the alleged mortgage or the loan transactions made between the second defendant and the seventh defendant.

3.3. The possession notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as “SARFAESI Act”), or sale notice was not served to the plaintiffs or to the fifth defendant. Only after seeing the paper publication dated 28.08.2009, they came to know the above facts. Therefore, the plaintiffs caused notice to the defendants on 01.09.2009. Hence the suit for declaration declaring that the general release deed dated 29.01.1983 as not enforceable and null and void and also consequential injunction along with declaration prayer declaring that the mortgage deed created by the second defendant with the seventh respondent is null and void. While pending the suit, the suit property was sold out without kn