S. Sankaranarayanaswami Pillai vs Pechiammal

V. Sethuraman, J.—The defendant is the appellant. The plaintiff filed a suit for redemption of a mortgage in the following circumstances. The

mortgaged property belonged to one Ammaponnu and her minor children. Ammaponnu acting for herself and for her minor children usufructuary

mortgaged the property in favour of one Ponnammal. Ponnammal borrowed in her turn a sum of Rs. 1,000 from one Meenakshi Ammal on 3rd

January 1955., On 5th March, 1953 Ponnammal, the usufructuary mortgagee deposited the mortgage deed with Meenakshi Ammal, her creditor

and thereby created a sub-mortgage. Meenakshi Ammal filed O.S. No. 366 of 1962 for recovery of the amount due from Ponnammal and for

enforcing the charge. She got an ex parte decree and in execution in E.P.No. 904 of 1964, she brought to sale the sub-mortgage right of

Ponnammal. Her husband purchased the sub-mortgage right on 15th March, 1965. The husband is the present defendant who is the appellant

here. The sale in favour of the defendant was confirmed on 17th April, 1965 and the defendant took delivery of the property on the 7th February,

1966.

On 22nd May, 1958 Ponnammal, the original mortgagee who sub-mortgaged her mortgage rights in favour of Meenakshi Ammal, purchased

the property from Ammaponnu and others. Thereby the mortgage in favour of the Ponnammal was extinguished and Ponnammal became the full

owner of the property. In 1964, the plaintiff purchased the suit property from the said Ponnammal. The plaintiff filed the present suit claiming a right

to redeem that mortgage in favour of the defendant.

The defendant in the suit stated that the sale in favour of the plaintiff was affected by lis pendens as E.P. No. 904 of 1964 was pending, when

the plaintiff purchased the property from Ponnammal, so that, he had no right to redeem the mortgage. The trip] Court held that the sale in favour

of the plaintiff was affected by lis pendens and therefore dismissed the suit for redemption. The plaintiff appealed and the learned District Judge

held that the sale under Exhibit A-2 in favour of the plaintiff was not hit by the rule of lis pendens and that the conclusion of the trial Court to the

contrary was erroneous. The learned District Judge therefore held that the plaintiff was entitled to redeem the mortgage. The defendant has brought

this appeal questioning this judgment of the learned District Judge.

In the present appeal, the submission on behalf of the defendant-appellant was that when the mortgagee purchased the equity of redemption, the

sub-mortgage became a regular mortgage and what was brought to sale in E.P. No. 904 of 1964 in enforcement of the sub-mortgage was only the

equity of redemption. The further submission was that the sale in favour of the plaintiff was affected by the rule of lis pendens. It was also submitted

that the right of the sub-mortgagee could not be severed from the property, that the sub-mortgagee in the present case had rights on the property

even prior to the plaintiff coming on the scene and that she was in the position of a prior mortgagee. The suit filed by the defendants wife was such

as to affect the plaintiff''s purchase. On behalf of the respondent, the submission was that there was a mortgage in her favour on 4th December,

1959 that she was interested in the suit property even when the defendant''s wife filed the suit on her sub-mortgage and that the defendant''s wife

ought to have impleaded the plaintiff in the said suit. It was also submitted that the sub-mortgage was extinguished as soon as Ponnammal

purchased the property on 22nd May, 1958 and that the defendant had purchased in the Court auction only the othi right. When the suit filed by

the defendant''s wife was concerned only with the othi right and when the transfer in favour of the plaintiff was the equity of redemption, there was

no question of the rule of lis pendens operating. It was also submitted that the defendant was estopped from contending that he had purchased the

right of redemption as well as the right of foreclosure under the execution proceedings mentioned already.

The short question that I have to consider is whether the sale in favour of the plaintiff is affected by the rule of lis pendens. Section 52 of the

Transfer of Property Act provides that during the pendency in any Court of any suit or proceeding which is not collusive and in which any right to

immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or

proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of

the Court and on such terms as it may impose. There is no dispute in the present case that the authority of the Court has not been obtained. O.S.

No. 366 of 1962 which is a suit which is said to affect the present purchase was for the recovery of the amount due to the wife of the defendant

and for enforcing the charge that was available to the defendant''s wife under the sub-mortgage created in her favour on 5th March, 1955. In

execution proceedings that followed, the sale proclamation was only in respect of the submortgage rights. It is not clear as to bow the sale

proclamation was approved without even the production of the encumbrance certificate which, if obtained, would have shown the purchase by the

plaintiff. The whole proceedings in O.S. No. 366 of 1962 and the execution proceedings following thereto were restricted to the sub-mortgage

rights. The plaintiff had only purchased the equity of redemption from the said Ponnammal and she has thus stood in the shoes of Ponnammal,

when she applied for redemption in the present suit.

The learned Counsel for the appellant drew my attention to two decisions. The first is reported in Ajudhia Prasad v. Man Singh (1903) ILR 25

All. 46. In that case, it was held that:

Where a mortgagee mortgages his mortgagee rights and afterwards acquires from his mortgagor the equity of redemption in the mortgaged

property, such acquisition will enure for the benefit of the sub-mortgagee, or mortgagee of the mortgagee interest, and he will be entitled to sue for

sale of the property in the same way as if the proprietary interest had been mortgaged to him from the first.

In the present case, I am not concerned with the application of the principle that the mortgage rights would be enlarged, if the original mortgagee

purchased the equity of redemption. I am concerned with what happened in the suit and in the execution proceedings following thereto. J am not

satisfied that the proposition that where the mortgagee purchased the equity of redemption, the sub-mortgagee gets the benefit thereof has any

scope for application in the present proceedings.

The learned Counsel also drew my attention to, the decision in Muthu Vljioya Ragkunatha Ramackandravacha Flahali Thurai v. Venkatachallam

Chetti ILR (1897) Mad. 35 1897 6 M.L.J. 235. A Bench of this Court held that

A sub-mortgagee is entitled to a decree for the sale of the original mortgagor''s interest in cases and in circumstances which would have entitled the

original mortgagee on the date of the sub-mortgage to claim such relief.

If in O.S.No. 366 of 1962 the defendant''s wife had applied for a decree for the sale of the mortgagor''s interest, then this decision would have

applicability. That was not the suit which was filed. I do not therefore see any justification for applying the principles laid down in this decision to

the facts of the present case. I therefore hold that the sale in favour of the plaintiff is not affected by the rule of lis pendens enacted in Section 52 of

the Transfer of Property Act. The learned District Judge was, therefore, right in the conclusion arrived at by him.

The second appeal is, therefore, dismissed. There will be no order as to costs.