Medar Nagamma vs Medar Sanna Sivanna

B. Jagannatha Hegde, J.—Plaintiff-Respondent No. 1 filed a suit in O.S.No. 157/1975 before the Principal Munsiff, Bellary, for declaration of title and permanent injunction against defendants 1 to 8 from taking delivery of the schedule building in pursuance of an order passed in H.R.C.No. 69/1972 and from collecting rent from defendant No. 9. The suit was decreed on 5.10.1977. Defendants 1 to 4, 6 and 8 filed an appeal before the Civil Judge, Bellary, in R.A.No. 108/1977. That appeal was dismissed on 12.8.1980. Defendants 1 to 4, 6 and 8 have thereafter filed this second appeal.

The suit property and another item was owned by one Medar Gurubasappa and he mortgaged the suit properties to one Mudnur Gangappa on 9.9.1946. Later, Medar Gurubasappa sold one of the Items mortgaged, i.e., the suit property, to the brother of the plaintiff on 24.4.1948. The plaintiff in turn purchased the suit property from his brother on 28.1.1957. Mundlur Gangappa transferred his mortgage''s right to one Sannabasavana Gowda and he filed a suit in O.S.No. 72/1958 for recovery of mortgage amount by sale of the mortgaged property. The plaintiff was not a party to this suit. Final decree was passed in O.S.No. 72/1958 on 14.11.1960. In the execution proceedings, the mortgaged properties, viz., the suit property and another item were sold in one lot and one Medar Huligappa, predecessor in title of defendants 1 to 8, purchased the same in the Court auction. The sale was confirmed on 26.6.1968 and in pursuance of which a sale certificate was issued. The suit building which was in the possession of the tenant-defendant 9 was ordered to be delivered and it is purported to have been delivered on 20.4.1972. Defendants 1 to 8, who are the legal representatives of the auction purchaser, filed an eviction petition against defendant 9 before the Rent Controller in H.R.C.No. 69/1972. In the H.R.C. proceedings it was held that defendants 1 to 8 are the landlords of defendant 9 and an order of eviction of defendant 9 was passed in favour of defendants 1 to 8. At this stage, the present suit was filed.

The contention of the plaintiff is that he is the owner of the property by virtue of the sale deed executed in favour of his brother by the original owner Gurubasappa and the subsequent sale in his favour executed by his brother on 28.1.1957, that defendants 1 to 8 have no title and that he being not a party to O.S.No. 72/1958, the sale effected in that proceedings will not bind him. It is his further contention that the proceedings before the Rent Controller in H.R.C.No. 69/1972 cannot also bind him as he was not a party to that case and that defendant 9 cannot be evicted by defendants 1 to 8 as he is his tenant.

The contesting defendants who are the appellants, contend that in an auction sale in execution of a mortgagee decree the auction purchaser gets the right, title and interest of the mortgage as on the date of mortgage, that he becomes the owner and that the alienee from the mortgagor who has not been impleaded in the mortgage suit has no right to retain possession but has only the right of redemption. It is also argued that the final decision in H.R.C.No. 69/1972 holding that defendants 1 to 8 as the landlords of the suit property is binding on the Civil Court and that the Civil Court cannot pass an injunction restraining defendants 1 to 8 from taking delivery of the plaint schedule property in execution of the order passed in H.R.C.No. 69/1972.

Both the Courts-below, after holding that the suit property was not delivered to defendants 1 to 8 in accordance with Order 21 Rule 96 of the C''.P.C. have decreed the suit, as it was conceded before both the Courts, that if there is no delivery in accordance with law, the defendants have no case.

Sri D.L.N.Rao, learned Counsel for the appellants, contends that, in this Appeal the appellants could canvass the other points available on record, as the concession that was made was on a question of law and when the concession made by the Counsel on behalf of his client on a question of law, it would not bind his client so as to preclude him from urging the plea in a higher Court. In the case of M.M.B. CATHOLICOS v. M.P. ANTHANASIUS AIR 1954 SC 256, it is stated that an erroneous concession of law made by the defendants'' Advocate cannot be relied upon for saving the plaintiffs. Sri Rao, therefore, contends that he could urge before this Court that the plaintiffs'' remedy is only of redemption, that they cannot get a declaration of title and they cannot resist the possession of the defendants. Sri Rao is justified in contending so, as the concession made at the Bar related to a question of law only. Sri Achar, learned Counsel for Respondent-1-plaintiff, contends that even if the delivery effected is held to be valid, it will not bind the plaintiff.

The points that arise for consideration are:

(a) Whether the suit property has been delivered in accordance with Order 21 Rule 96 of the C.P.C. to the auction purchaser and if so what is its effect on the plaintiff ? and

(b) Whether the plaintiff is entitled only to a right of redemption and not a declaration of title ?

The sale certificate issued related to two buildings sold in one lot. The Courts below have concurrently held that the affixture of the sale certificate on another building is not sufficient to hold that the suit building has also been delivered to the auction purchaser. One building contained four tenaments and it is bigger in size than the suit building. Defendant 9 is the only tenant of the suit building and two houses intervene between the two buildings. It is not in dispute that the sale certificate was affixed on the bigger building and that defendant 9, the tenant of the suit building, was present when the sale certificate was affixed to the bigger building. Order 21, Rule 96 of the C.P.C. reads thus:

"DELIVERY OF PROPERTY IN OCCUPANCY OF TENANT Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the Judgment-debtor has been transferred to the purchaser."

The question to be considered in this case is whether the copy of the sale certificate has been affixed on some conspicuous place on the property as required under this provision.

Relying on the Decision in the case of JITENDRA MOHAN SINGH v. BINDBASNI KUNWAR AIR 1945 Oudh 96, Sri Rao, learned Counsel for the appellants - contesting defendants, contends that the question whether a formal defect in effecting symbolical delivery of possession invalidates the delivery of possession depends upon the circumstances of each case. In this case, the effect of symbolical delivery under Order 21 Rule 36 C.P.C. was considered. In the case of Puttamma Shedthi Vs. Y. Sheena Shetty and Others, , it is stated that the affixture of a copy of the sale certificate in a conspicuous place of one of the items in a case where several plots are involved and situated in different places is not an effective delivery of all the properties. It is further stated that even though a copy of the sale certificate is affixed in a conspicuous place in one of the plots, there is no presumption that the affixture as required by law was made with reference to all the plots if all of them are not in one place, it was further laid down in that Decision that the question to be considered in such a case is whether the affixture of a copy of the sale certificate in one place in a given case is sufficient to bring the symbolical delivery within the purview of Order 21 Rule 96 C.P.C. and that this in turn depends upon whether all the plots are situated in one and the same place or they lie in different parts of the village. The contention of the plaintiff is that a copy of the sale certificate should have been affixed on the suit building also. The argument of the contesting defendants is that since both the buildings are situated at one place and the sale certificate having been affixed on the bigger building in the presence of the tenant, the delivery effected satisfies the requirements of Order 21 Rule 96. Order 21 Rule 36 states how delivery of immovable property in the occupancy of a tenant will have to be effected. Order 21 Rule 96 which is more or less similar to Order 21 Rule 36 prescribes the mode of delivery of the property in the occupation of a tenant in a Court auction. Order 21 Rule 54 states how an attachment of a immovable property will have to be effected and Order 21 Rule 67 prescribes the mode of proclamation of sale. The object of attachment of immovable property is to make it known to the general public that the property has been attached. The intention behind the issue of proclamation of sale is to attract more bidders. But, the object of Order 21 Rule 96 is only to make known the occupier of the property sold that the interest of Judgment-debtor has been transferred to the auction purchaser. The sale certificate pertaining to both the buildings sold in one lot has been affixed to the main bigger building which is only two houses away from the suit building in the presence of defendant 9, who is admittedly the tenant of the suit building. Having regard to these facts, I hold that there has been sufficient compliance of the provision of Order 21 Rule 96. But, that delivery will not affect the rights of the plaintiff as he was not a party to the said proceedings.

I am also not able to appreciate the contention of Sri Rao, learned Counsel for the appellants, that the order in H.R.C.No. 69/1972 holding that defendants 1 to 8 are the landlords of defendant 9 in respect of the suit premises will bring the plaintiff, as he was not impleaded in that case. It is also not possible to accept his contention that a Civil Court cannot restrain defendants 1 to 8, who have secured an order of eviction, from interfering with the possession of the plaintiff through defendant-9 or taking possession of the suit property from defendant-9 in execution of the order passed in H.R.C.69/1972. That position of law is made clear by a Division Bench of this Court in the case of Paramound Industries Vs. C.M. Malliga, .

The next point that is left for consideration is the rights available to the purchaser of a part of the mortgaged property as against the auction purchaser of the mortgaged property in an auction held in execution of a decree for sale to which he is not a party. It is not in dispute that the mortgage in question was a simple mortgage and the possession remained with the mortgagor. The contention of the plaintiff is that the suit filed by the mortgagor and the sale held in pursuance of the decree passed therein will not bind him and he still remains the owner of the same and that the mortgagor, if at all, can enforce his right available to him as mortgagor. The contesting defendants contend that the plaintiff has only a right of redemption as he is a mere purchaser of the equity of redemption.

Sri D.LN. Rao, learned Counsel for the Appellants, relies on the Decisions in the cases of Niharmala Debee Vs. Sarojebandhu Bhattacharjya, , SAMBASIVA AYYAR v. SUBRAMANIA, AIR 1936 Madras 70, and Hemanta Kumar Bose Vs. Jitendra Nath Pal and Others, In the case of Niharmala Debee v. Sarojebandhu, it is stated that a purchaser of mortgaged property in execution of mortgage decree can bring a suit for possession against the holder of equity of redemption, who has purchased a part of equity of redemption from mortgagor and who had been left out in the mortgage suit and that a decree can be made in his favour subject to the defendant''s right of redemption, if the mortgagee was not aware of the purchase of part of the equity of redemptfon by the defendant at the time of mortgage suit. In the case of Sambasiva Ayyar v. Subramania and also in the case of Hemanta Kumar Bose v. Jitendranath Pal and Ors., the same view has been expressed. Sri Rao, learned Counsel for the appellants, also relies on a decision of the Privy Council in the case of AIR 1940 11 (Privy Council) wherein it is stated that while the purchaser at an execution sale under a mere money decree gets no more than the right, title and interest-of the judgment-debtor at the date of the sale, the purchaser under a mortgage decree gets the right, title and interest in the mortgaged subjects which the mortgagor had at the date of the mortgage and charged thereby.

Sri M.R. Achar, learned Counsel for the plaintiff-respondent-1, relying on the Decisions in the cases of Sohan Lal and Others Vs. Mohan Lal and Others, VELLAKUTTY v. KARTHYAYANI AIR 1968Kerala 179, Suraj Prasad Vs. Mt. Aguta Devi and Others, GANGA PRASAD SINGH v. MT. GANESHI KUER, AIR 1944 Patna 119, and TUKARAM v. EKNATH, AIR 1944 Nagpur 57, disputes the contention of the defendants that the plaintiff is not a mere holder of equity of redemption and contends that by virtue of the registered sale deeds dated 24.4.1948 and 28.1.1957 he has become the owner of the suit property. In the case of Sohan Lal v. Mohan Lal, a Full Bench of that Court held that the mortgagor even after the mortgage remains the owner and he is not a mere holder of equity of redemption. This view was followed in the case of Vellakutty v. Karthyayani, wherein it is stated at page 180 as follows:

"....It is trite law that an alienee after-mortgage would not be affected by the decree and execution proceedings in a mortgage-suit to which he was no party. In Hargu Lal Singh Vs. Gobind Rai and Another, the plaintiff obtained a simple mortgage in 1879 and the defendants purchased the property in 1886 from the mortgagor. In the suit to enforce the mortgage, only the original proprietor, but not his assignees, was made a party. The property was brought to sale and purchased by the mortgagee in execution of his decree. He then brought the suit to enforce possession against the assignees of the mortgagor. Though the Munsiff allowed it, the District Judge reversed him and dismissed the suit. On appeal, Edge C.J., speaking for unanimous Full Bench of five Judges said: "His simple mortgage did not entitle him to possession as against any one. His decree for sale brought in a suit to which these defendants were not parties had no effect as against them, and his purchase at the sale held under the decree conferred on him no title as against these defendants. The result is that the plaintiff had no title to possession at the commencement of the suit against these defendants."

In the case of Suraj Prasad v. Aguta Devi, a Full Bench of the Patna High Court held that when an owner sells his immovable property which is subject to a simple or usufructuary mortgage, it is the sale of a tangible immovable property and not that of a mere intangible right. In the case of Ganga Prasad Singh v. MT. Ganeshi Kuer, it is stated that if the person who has been left out in the mortgage auction was in possession or entitled to possession on that date as the representative of the equity of redemption or was the person in whom the equity of redemption lay in full or in part then the sale in his absence is not binding on him and he cannot be forced to redeem and that he may, if he likes, institute a suit for possession only. It is further laid down that the remedy of the auction purchaser is no more than to bring a suit for sale. In the case of Tukaram v. Eknath, it is clearly stated that the mortgagee, who forecloses, his mortgagor behind the back of the owner of the equity of redemption or other persons interested in the equity, does not get the right to sue for possession of the property as against the transferees of the equity of redemption who are not parties to the suit and that the only remedy of the mortgagee is to bring a suit against such transferee to have his right declared to sell or foreclose the property.

Section 58(a) of the Transfer of Property Act which defines ''mortgage'' specifically says that a mortgage is a transfer of interest in a specific immovable property as security for the repayment of a debt, The nature of the right so transferred depends upon the form of mortgage. In a simple mortgage, the right to sell which is one of the component rights of ownership is transferred. Even after such transfer, he still remains the owner and if he transfers by way of sale after the mortgage, he would be selling the property itself and not mere right of redemption. Of course, a mortgagee in England, from the date of mortgage, becomes the owner of the properly and nothing is left with the mortgagor except the equity of redemption. But the Indian law has intentionally avoided the expression "equity of redemption" and in Section 60 of the Transfer of Property Act the expression "right to redeem" has been used. A "right to redeem" is different from "equity of redemption". Therefore, it would not be correct to substitute the expression "right to redeem" for the English expression "equity of redemption". Ownership is a bundle of rights and merely because the owner mortgages his property, it cannot be said that he is not entitled to transfer the property itself thereafter. In a mortgage, the mortgagee gets an intangible right for the purpose of securing the payment of debt or the performance of an engagement ''which may give rise to a pecuniary liability. Only the owner, i.e., the mortgagor, can transfer the property itself, subject to the interest which he has transferred to others, out of the totality of his rights which constitute the ownership. I would, therefore, agree with the views expressed by the High Courts of Patna, Kerala, Nagpur and Allahabad and I respectfully disagree with the views expressed by the High Courts of Madras and Calcutta. The Judgment delivered in the case of Jadunath Roy v. Parameswar Mullick proceeded on the basis that the widow and the daughter of the mortgagor had no right over the suit properties when it was mortgaged. The effect of nonjoinder of the purchaser of a mortgaged properly in a suit for recovery of the mortgage amount has not been considered in that case.

The decree obtained by Sannabasavana Gowda in O.S.No. 72/1958 and also the auction sale held thereafter did not affect the title of the plaintiff who was not a party thereto. He is, therefore, entitled to the reliefs sought for. However, it is open to the defendants to enforce the rights of the mortgagor, as are available to them in law against the plaintiff.

Hence, the Appeal is dismissed. No costs.