Nannuvien and Another vs Muthusami Dikshadar and Others

A usufructuary mortgage for two years of two plots of land, items Nos. 1 and 2 of the plaint schedule, for Rs. 170, was made in 1855 by the

present fourth defendant, the father of the plaintiffs, to the deceased father of defendants Nos. 1 and 2. In execution of a money decree obtained

by the father of defendants Nos. 1 and 2 in respect of a claim against the fourth defendant arising independently of the mortgage, the fourth

defendant''s equity of redemption in item No. 1 was brought to sale and purchased by the father of defendants Nos. 1 and 2 in 1878 The equity of

redemption in item No. 2 was sold in execution of another decree against the fourth defendant obtained by the third defendant''s uncle and was

purchased by the third defendant''s undivided brother. The third defendant redeemed item No. 2 from defendants Nos. 1 and 2 on payment of

what was decided in the suit brought by him for the redemption to be the amount properly chargeable on that item out of the mortgage amount of

Rs. 170. The plaintiff''s present claim to redeem both items was dismissed by the lower Courts. As regards item No. 2 the appeal has not been

pressed.

As regards item No. I it was urged for the appellants that they were entitled to redeem their share, at least of that item, with reference to the

decisions in Muthuraman Chetti v. Ettappa sami ILR Mad. 372 and Martand Baldrishna Bhat v. Dhando Damodar Kuldarni ILR 22 Bom. 624.

The former rests entirely upon the ground that the sale under which the purchaser claimed in that case was one brought about by the purchaser in

violation of the provisions of Section 99 of the Transfer of Property Act. That section is not merely declaratory of what was previously accepted

and enforced as law. Though the necessity for such an enactment was occasioned among other causes by the practice of mortgagees bringing the

properties which formed the subject of their mortgages to sale without actual decrees for sale, yet the obligation or restriction imposed by the

section was strictly new. Consequently to follow Muthuran an Chetti v. Ettappasami ILR 2 Mad. 372 in cases like the present would virtually be to

give a retrospective operation to Section 99 of the Transfer of Property Act. Even assuming that the principle of the section is itself one to which a

mortgagee may, as a matter of equity, be subjected apart from any statutory provisions, as apparently was the view taken in Martand Balkrishna

Bhat v. Dhando Damodar Kulkarni ILR 22 Bom. 624, still, it is clear, we ought not to extend it to cases like the present inasmuch as the purchase

of a mortgagor''s right of redemption by the mortgagee at a Court-sale brought about by the latter in respect of a claim independent of the

mortgage was, prior to the passing of the Transfer of Property Act so far as we know understood in this Presidency to pass to the purchaser, the

whole interest as effectually against the sons of the judgment debtor as against the judgment-debtor himself. Our attention has not been drawn to

any decision to the contrary, and we have no hesitation in saying that we would be unsettling innumerable well-established titles if, as urged on

behalf of the appellant, we were to attach to judicial sales perfected before the Transfer of Property Act came into force the consequences which

may rightly be annexed to a breach of the provisions of Section 99 of that Act in proceedings governed thereby.

The second appeal is dismissed with costs.