Sheodeni Tewari and Others vs Ram Saran Singh and Others

O''Kinealy and Hill, JJ.—In this case one Kunj Behari Singh executed a mortgage in favour of the predecessor of the plaintiffs. He nevertheless held under a katkina lease, which was granted on the same day, and which covered the mortgaged property. The plaintiffs brought a suit for arrears of rent on the katkina lease, sold a 2 annas share of the mortgaged property, and purchased it themselves. They now sue for possession of the property as auction-purchasers.

Among other defences that have been raised in the suit is one that u/s 99 of the Transfer of Property Act the plaintiffs are prohibited from buying the equity of redemption in respect of the property over which they hold a mortgage, and that the remedy, if any, must be the remedy given by that section. This contention has received the approbation of both the lower Courts, where the suit has been dismissed.

In second appeal it has been argued that Section 99 of the Transfer of Property Act is a section of procedure, and the property in this case having been sold by a Court of competent jurisdiction at the instance of the plaintiffs and bought by them, the sale is not void or voidable; and, secondly, it has been contended that as the mortgage in question is a purely usufructuary mortgage the mortgagees have no right to sell u/s 67 of the Transfer of Property Act, and consequently it is unreasonable to suppose that the provisions of Section 99 of the Act apply to such a mortgage.

Section 99 of the Transfer of Property Act runs as follows: "Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit u/s 67, and he may institute such suit notwithstanding anything contained in the Code of Civil Procedure, Section 43."

This section is to be found in Chapter IV of the Act, which, as may be seen from Section 58, applies to all mortgages, a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, and an English mortgage. There are no words in the section limiting the word "mortgagee" to a mortgagee holding under a particular form of mortgage; and the ordinary meaning of the language of Section 99 would be that it prohibits the sale of the property mortgaged in all cases save in a suit brought u/s 67. Nor does there appear to us to be anything in the argument that Section 99 does not apply if a suit to sell does not lie u/s 67. The words of the section are general and uncontrolled. To accept the contention would be that we should be compelled to read into the section the words "that if under the terms of the mortgage no suit can be brought; u/s 67, the mortgagee can sell the equity of redemption." There are no such words in the section, and if we were to add them, instead of interpreting the law, we should be legislating. Nor do we think that the section contemplates merely a matter of procedure, and that a sale wrongly made would be merely irregular. The tenor of the decisions of the different High Courts is that the sale is void, and we are of the same opinion.

The appeal is dismissed with costs.