LexR. SANTHANKUMAR NADAR versus INDIAN BANK LTD., MADRAS & ORS.
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A .B c 0 F G H R. SANTHANKUMAR NADAR v. INDIAN BANK LTD., MADRAS & ORS. F'ebruary, 6, 1967 [J.C. SHAH AND G. K. MITTER, JI.) Transfer of Property Act (4 o/ 1882), :rs. 51 and 69-Applicabi/Jty of •· 51 to purchar<r of mortgaged proptrtY with know/edge of mortgag.- Notice to assignee of exercise of right of sale under s. 69-lf necessary. A mortgage was created over property situate in ihe City of Madras and the mortgagc..deed conferred on the mortgage the power under s. 69 of the Transfer of Property Act, to sell the property without the intervention of the Court. Thereafter, the appellant purchased a smlll portion of the property from the mortgagors. The sole-deed provided that the mortga,ors (vendors) should get the property sold released from the mortgage within one year, that In default thereof the appellant ( vendee) would be at liberty to enforce his rights to compel the vendors to do so, and that the vendors should indemnify the vendee for all ex- penses and damages; but, no such steps were taken either by the vendors or the vendee. After the appellant's purchase, a notice was issued on behalf of the mortgage, to the mortgagors, in terms of the mortgage deed, as required by s. 69(2), but no notice was served on the appellant. The property mortgaged was then widely advertised for sale and was bought by the first respondent bank. The bank then filed the suit for vacant possession, mesne profits and other reliefs. The appellant contended that : (I ) the sale was invalid and not binding on his portion in the absence of notice to him, and (2) as a bona fide purchaser he was entitl- ed, under s. 51 of the Act, to the value of improvements effected by him The High Court rejected the contentions and decreed the suit. In appeal to this Court, HELD: (1) Section 69(2) lays down that the notice requiring pay- ment of the mortgage money may be given to the mortgagor or to one of several mortgagors, where there are more than one. In the present case, the mortgagors had not parted with their entire interest in the property, and the appellant stood in the shoes of the mortgagors with respect to the portion purchased by him. Therefore, notice having been issued to the mortgagors the appellant was not entitled to such notice. Since he knew of the power of sale contained in the mortgage deed and there was no fraud or collusion in the sale of the property to the bank, the appellant had no cause fur complaint. [615 E-F; 616 G] Muncherji Furdoonji Mehta v. Noor Mahomedbhoy lairajblwy Pir- bhoy, I.LR. 17 Born. 711 and Hoo/e v. Smith, 17 Ch. D. 434 explained. ( 2) Section 51 of the Act bas no application to the appellant at all, u, in the circumstances of the case, be could not have bebeved that he wu absolutely entitled to the property. [617 El CIVIL APPELLATE JURISDICTION : Civil Appeal No. 505of1965. Appeal by special leave from the judgment and decree dated March 11, 1964 of the Madras High Court in Original Side Appeal No. 11 of 1960. 614 SUPREME COUltT REPORTS [1967] 2 S.C.R R. Thiagarajan and R. Ganapathy Iyer, for the appellant. A M. S. K. Sastri and M. S. Narasimhan, for respondent No. I. The Judgment of the Court was delivered by Mitter, J. This is an appeal from a judgment and decree of the High Court of Judicature at Madras on special leave granted by this Court. The owners of the properly situate in the City of Madras cr~<lted a mortgage over it in 1944 i,1 favour of one Jagmohan Pra;ad Bhalla with power to him to sell the mortgaged property without the intervention of the Court. On April 22, 1950 the appel- lant before us purchased a small portion of the properly from the mortgagors. the vendors covenanting to get th~ property mentioned in the schedule to the document released from the mortgages mcn- ti'>ned within a period of one year, in default whereof the vendee was to be at liberty to enforce his rights to compel the vendors to do so in appropriate proceedings and the vendors agreed to indemnify the purchaser for all such expenses and damages. The original mortgagee died on March 14, 1950 lca\ing a will and bequc1thing the entire prc,perty in equal shares to several persons. The ~xecut_or to the will of:h~ deceased executed a deed of transfer ia favo~r of the said legatee> on May 14. 1951. The legatees executed a genaal power of attorney in favour of one Gangadhar Bhalla. the 8th defendant, c;onfcrring on him all powers including the powe
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