Judgment · High Court · 2006

According to theplaintiff, the plaint schedule property originally belonged to thefirst defendant. The first defendant, her husband-seconddefendant along with defendants 3 to 5 have executed a mortgagedeed on 28.10.1963 in favour of Sasvatha Ratchaga Nithy, Nungampakkam for a loan of Rs.25,000/-. As per the terms andconditions of the said mortgage deed, in case of default inrepayment of the loan amount, as per section 69 of the Transfer of Property Act, the mortgagee his entitled to bring the mortgagedproperty in public auction to realize the mortgage loan amount. The defendants subsequently obtained a loan of Rs.10,000/- on20.5.1971 from Baluseri Funds and executed another mortgage deedin respect of the Plaint schedule property. Subsequently on30.12.1972 the defendants have executed another mortgage deed forRs.5,000/- in favour of one Radhakrishnan in respect of the samePlaint schedule property.

Since the defendants have failed torepay the mortgage amount to Sasvatha Ratchaga Nithy, Nungampakkam, they have brought the suit property in publicauction and on 05.02.1972 the plaintiff had taken the saidproperty in public auction for Rs.37,900/- and the plaintiff paidthe entire sale amount on 15.07.1975 and obtained the sale deed. So from that date onwards the plaintiff is entitled to getrecovery of possession from him. The defendants filedO.S.No.1470/1972 for declaration that the auction which took placeon 5.2.1972 is null and void. The said suit was dismissed on25.8.1978. Even though the auction was conducted on 5.2.1972 dueto the suit viz. O.S.No.1470/1972 filed by the first defendant, there was a delay in registration of the sale deed which tookplace only on 15.7.1975. The plaintiff had issued suit notice on20.3.1979 to the defendants for recovery of possession and he alsoclaimed mean profits at the rate of Rs.3,500/- per month. Theplaintiff restricts his claim for mesne profits to three yearsprior to the filing of the suit. https://hcservices.ecourts.gov.in/hcservices/

The second Defendant in his additional writtenstatement dated 22.11.1991 at paragraph 3 would state that even inthe S.A.No.2136/81 preferred against the Decree and Judgmentpassed in O.S.No.1470/72 all the LRs of the deceased/firstDefendant have been brought on record and would contend that thesuit as against the first Defendant, who is the mortgagor and theowner of the property has been abated. Except this pleadingthere is absolutely no pleading neither in the written statementnor in the additional written statement filed by the Defendantscontending that the suit is bad for non-joinder of necessaryparties. 8(b) Order 1 Rule 9 of CPC emphasizes that no suit shallbe defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter incontroversy so far as regards the rights and interests of theparties actually before it. Provided that nothing in this ruleshall apply to non-joinder of a necessary party.8(c) The learned counsel appearing for the respondentswould focus the attention of this Court to Order 1 Rule 13 of CPCand contend that all objections on the ground of non-joinder ormisjoinder of parties shall be taken at the earliest possibleopportunity and failure to raise such objections at the earliestpoint of time will amount to waiver of the such objections.

Order1 Rule 13 of CPC runs as follows: "All objections on the ground ofnon-joinder or misjoinder of parties shall betaken at the earliest possible opportunity https://hcservices.ecourts.gov.in/hcservices/ and, in all cases where issues are settled, at or before such settlement, unless theground of objection has subsequently arisen, and any such objection not so taken shall bedeemed to have ben waived. "In support of his contention the learned counsel relied on theratio of this Court reported in 1992 TNLJ 154 (Pe.Ramasamy Thevarvs. Perumal Thevar and 7 others), wherein the effect of absence ofa plea in respect of misjoinder of parties and cause of action hasbeen dealt with. The relevant observation in the above saiddictum runs as follows: "However, as it has been rightly contended bythe learned counsel for the respondents, there are noaverments in the written statement regarding the mis-joinder of parties and cause of action.

When theissues were settled on 6.7.1978 no issue was framedon mis-joinder of parties. But on 6.11.1979 thetrial Court framed an additional issue on misjoinderof parties and the Judgment was pronounced on7.11.1979. After arguments were over, the additionalissues were framed suo-moto by the trial Court. Therespondents-plaintiffs were not put on notice of theframing of these issues. The Judgment of the trialCourt does not indicate that any arguments wereadvanced by the parties on this aspect. A reading ofthe provisions under Order 1 Rule 1, 9, 13 CPC., andorder 2 Rule 7 CPC, would make it clear that in theabsence of any plea in the written statement on themisjoinder of parties and misjoinder of cause ofaction, the trial Court was not within its limits inframing issues on this aspect and of its own accordand non-suiting the plaintiffs on the ground ofmisjoinder of parties. The same position has been reiterated by this Court in 1999(III)CTC 57 (Visalakshi Achi, RM.AL (died) Vs.

RM.Seenivasan), whilediscussing the effect of non-joinder of parties the Court has heldas follows: "There is no reference whatsoeverto the non-joinder of Amirthavalli Achi. Under Order 8, Rule 2 of the Code of CivilProcedure, it is incumbent on the contestingDefendants to raise all matters which showthe suit to be not maintainable. A merevague statement that the suit is not https://hcservices.ecourts.gov.in/hcservices/ maintainable for non-joinder of necessaryparties does not tantamount to taking up aspecific plea that a particular necessaryparty had not been added as a party for whichthe suit should go. As alredy adverted to, there is no specific plea in the writtenstatements that non-joinder of AmirthavalliAchi was fatal to the case. The onlyreference to any party in the writtenstatements on the question of non-jonder isto Lakshmanan Chettiar. By no stretch ofimagination can it be contended that a mereaverment in the written statements withoutbeing specific that the suit is bad for non-joinder of party, by itself is sufficient.

In this connection, the learnedcounsel Mr.R.Subramanian relied on thefollowing decision: In Meghavaranam Vs. Md.Mohideen Sahib, AIR 1936 Mad. 732 it has been held that, "If the Defendants wish to objectto a suit on the ground of non-joinderof parties, it is incumbent upon them tostate who are the parties that shouldhave been joined and what is the natureof their interest in the suit and thatit is not incumbent on the plaintiffs tomake researches to discover the identityof supplemental Defendants who were notnecessary at any rate until the Defendants raising the objections, hadgiven such information as would enablethe plaintiffs to implead them andfurther that it is not necessary for theplaintiffs to take the troublethemselves by serving interrogatoriesupon the Defendants to ascertain thenames of possible supplementalDefendants".In Tarapada Mandal Vs. Hajia Khatum Bibi, AIR1956 Cal. 625 it has been held that,"where a written statement merelyrests content with the statement thatthe suit is bad for defect of partieswithout giving any reason as to why itis bad for defect of parties and thepoint is not specifically raisedtherein, the defect, if any, on this https://hcservices.ecourts.gov.in/hcservices/ ground should not be allowed to defeatthe whole suit.

"In Laxmishnkar Hrishankar Bhatt Vs YashramVasta (dead) by L.Rs. AIR 1993 SC 1587 : 1993(3) SCC 49 it has been held by the SupremeCourt that,"a vague statement that there wereother co-owners without anything furthercould hardly be sufficient to non-suit aparty on the ground of non-joinder ofparties"In Lakhi Prasad Togla Vs. Murlidhar Narwariand others, AIR 1973 Pt. 250 it has been heldthat,"all objections on the ground of non-joinder or mis-joinder of partiesshould be taken at the earliestopportunity or a t least at the timeof settlement of issues or beforesuch settlement and in the absence ofsuch objection raised at the earliestopportunity, it must be deemed thatthe non-joinder of party had beenwaived. "To the identical effect is though thedecision of the same High Court in RamsuratDevi Vs. Satraji Kuer, AIR 1975 Pat. 168. Ithas been further held in that case that aplea not raised in pleadings cannot be curedby evidence.

"8(d) The other ratio relied on by the learned counselfor the respondents is 1992 MLJ 188 (Ramachandra and others Vs.Valliammal and others) Wherein it has been held that if a co-ownerfails to raise a specific plea as to the existence of co-owners atthe time of filing the suit cannot maintain action in ejectmentbecause the other co-owners shall be construed only astrespassers. The exact observation in the above said dictum runsas follows: "Hence, the decision of the Supreme Courtin Kanakarathinammal's case, AIR 1965 SC 271, willnot apply to the facts of the present case. Aspointed out by me already, in the case before the Supreme Court, the plea was raised even at theearliest stage in the written statements. The pleaof non-joinder was considered by all the courts. In fact, the trial Court held tht the suit was badfor non-joinder of necessary parties. That wasupheld by the appellate Court. The Supreme Court https://hcservices.ecourts.gov.in/hcservices/ held that for consideration of the appellant'sclaim under the Mysore Hindu Law Women's RightsAct, 1933 as the exclusive heir to her mother, herbrothers were necessary parties and in the absenceof necessary parties, the suit could not bemaintained.

In the present case, no such question willarise. No doubt, the first plaintiff claimed thatshe was the exclusive heir of her mother Muthialammal. But even assuming that she was not theexclusive heir, she would only a co-owner alongwith her brother or brothers vis-a-vis the Defendants, who are only in the position oftrespassers. The suit by one co-owner cancertainly be maintained for ejecting them andrecovering possession. The suit for recovery ofpossession was only for the benefit of all co-owners in the event of there being other co-owners. "8(e) The appellants were estopped to contend that theauction sale was not properly conducted, in view of Ex.A.4-judgement. The original mortgager Sorojiniammal, who is the firstDefendant in O.S.No.2539/1981, had filed O.S.No.1470/1992 on thefile of the City Civil Court, Chennai for declaration that thepublic auction dated 5.2.1972, which was conducted as per section69 of the Transfer of Property Act by the mortgagee to realize themortgaged money of Rs.25,000/- under a mortgage deed dated28.10.1963 was not valid.

In that suit Sorajiniammal and all herheirs were brought on record in the Second Appeal. 8(f) After going through the rival contention, this Court in Second Appeal held that the public auction conducted asper section 69 of the Transfer of Property Act in respect of theearlier mortgage executed by Sarojiniammal and her five legalrepresentatives who are the appellants herein is valid and it hasbeen held that Sarojiniammal cannot maintain a suit andaccordingly, the Second Appeal was dismissed with costs. Ex.A.4is a deathknell for the claim of the appellants. In this casemortgagee had executed the sale deed in favour of the plaintiff asper the Court auction on 15.07.1975 under Ex.A.1. The sale is nothit by 'lis pendens' and after the execution of Ex.A.1-Sale deedthe right of redemption of the appellant has been extinguished. For this proposition of law, the learned counsel appearing for therespondent relied on 2005 (10) Supreme Court Cases 166(Madurambigai Ammal & Another Vs.

D.Somasundaram & others). Thefacts in that case in brief are s follows: https://hcservices.ecourts.gov.in/hcservices/ "Respondents 1 to 7 filed a suit fordelivery of possession of mortgaged proeprty. Themortgage was executed on 30.11.1974. There weretwo subsequent mortgages, one on 15.07.1975 andsecond on 18.12.1975. After due notice to themortgagors, the 13th Defendant of the suit broughtthe suit property on public auction aftersufficient advertisements published in thenewspapers and the auction was held on 31.8.1981.The plaintiffs in the suit were the highestbidders in the auction. They paid the entireamount and sought for execution of sale deed ofthe mortgaged property. The present appellantsfiled a suit for redemption on 1.10.1981.Originally, the plaint was filed in the form of anapplication as an indigent person and later it wasconverted into suit. Based on the sale deed suitfor possession was filed by Respondents 2 to 7 on10.9.1984.

The present appellants contended thatby virtue of the suit filed on 1.10.1981, theright of redemption survived and it was notaffected by the sale held on 31.8.1981. Thiscontention was rejected and suit for possessionfiled by Respondents 2 to 7 was decreed. Againstthe same OSA was filed and by the impugnedJudgment the plea raised by the appellants wasrejected. It was contended on behalf of the appellantsthough the right of the mortgagors to redeemcould be extinguished only after the sale deed isexecuted and as the sale deed was executedsubsequent to the suit, the appellants' right ofredemption is not lost. It is argued that theappellants had filed a suit for redemption priorto the execution of sale deed, the right ofredemption would survive and the appellants reliedon second proviso to Section 60 of the Transfer of Property Act, 1882. But we do not find any forcein this contention. The proviso specifically saysthat the right of redemption conferred on themortgagor under Section 60 could be extinguishedby the act of parties or by decree of the Court.

The sale deed was executed in favour of theauction-purchaser on 10.11.1981 and the appellantsin their suit for redemption had not obtained anyinterim order staying the operation of the https://hcservices.ecourts.gov.in/hcservices/ auction-sale or the execution of any sale deed andin the absence of (sic thereof) such right ofredemption would be extinguished. "The facts of the above dictum squarely applies to the presentfacts of the case. Here also after the execution of Ex.A.1-Saledeed in favour of the plaintiff by the mortgagee the presentappellants have no right to redeem to property because their righthave already been extinguished. 8(g) The same proposition of law has been emphasized in1977 (3) Supreme Court Cases 247 (Narandas Karsondas Vs.S.A.Kamtham & another). The relevant observation in the saiddictum runs as follows: "Section 69 of the Transfer of PropertyCourt deals with mortgagees' power of sale.

Under the said Section 69(1)(c), a mortgagee haspower of sale without the intervention of the Court where power is conferred by the mortgagedeed and the mortgaged property or any partthereof was on the date of the execution of themortgaged deed, situate within the towns of Calcutta, Madras, Bombay or in any other town orarea which the State government, may, bynotification in the official Gazette, specify. The principal question in this appeal iswhether the right to redemption has beenextinguished by any act of the parties. TheEnglish decisions are based on the provisions ofthe Law of Property Act, 1925. In England saleis effected by the contract of sale, and in India an agreement for sale is not a sale ortransfer of interest. In England, mortgageegets an equitable interest in the property. Under the English doctrine contract of saletransfers an equitable estate to the purchaser. The Court does not assist the mortgagor bygranting him a remedy unless there is collusionon the part of the mortgagee.

In India there is no equity or right inproperty created in favour of the purchaser bythe contract between the mortgagee and theproposed purchaser. In India, there is nodistinction between legal and equitable estates. The law of India knows nothing of thatdistinction between legal and equitable propertyin the sense in which it was understood whenequity was administered by the court of chanceryin England. Under the Indian law, there can be https://hcservices.ecourts.gov.in/hcservices/ but one owner that is, the legal owner. See RaniChhatra Kumari Devi Vs. Mohan Bkiram Shah (AIR1931 PC 196)................. The right of redemption which is embodiedin Section 60 of the Transfer of Property Act isavailable to the mortgagor unless in has beenextinguished by the act of parties. Thecombined effect of Section 54 of the Transfer of Property Act and Section 17 of the IndianRegistration Act is that a contract for sale inrespect of immoveable property of the value ofmore than one hundred rupees withoutregistration cannot extinguish the equity ofredemption.

In India it is only on execution ofthe conveyance and registration of transfer ofthe mortgagor's interest by registeredinstrument that the mortgagor's right ofredemption will be extinguished. The confermentof power to sell without intervention of the Court in Mortgage Deed by itself will notdeprive the mortgagor of his right toredemption. The extinction of the right ofredemption has to be subsequent to the deedconferring such power. The right of redemptionis not extinguished at the expiry of the period. The equity of redemption is not extinguished bymere contract for sale. The mortgagor's right to redeem willsurvive until there has been completion of saleby the mortgagee by a registered deed. InEngland a sale of property takes place byagreement but it is not so in our country. Thepower to sell shall not be exercised unless anduntil notice in writing requiring payment of theprincipal money has been served on themortgagor.

Further Section 69(3) of the Trnsferof Property Court shows that when a sale hasbeen made in professed exercise of such a power, the title of the purchaser shll not beimpeachable on the ground that no case hadarisen to authorise the sale. Therefore, untilthe sale is complete by registration themortgagor does not lose right of redemption. So at no stretch of imagination it cannot be said that theappellant and his LRs can redeem the mortgaged property. Afterthe execution of Ex.A.1-sale deed, in pursuance of the the publicauction by the mortgagee, and after the execution of Ex.A.1-Saledeed, mortgagor cannot ask for redemption of the mortgaged https://hcservices.ecourts.gov.in/hcservices/ property. The possession of the appellants are only to that of atrespassers and the findings of the learned trial Judge that theplaintiff is entitled to recovery of possession, needs nointerference from this Court.