Case: R. Santhankumar Nadar Vs. Indian Bank Ltd., Madras &amp; Ors

the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaint. Our attention was, however, drawn to a decision of the Bombay High Court in Muncherji Furdoonji Mehta v. Noor Mahomedbhoy Jairajbhoy Pirbhoy, (1893) ILR 17 Bom 711 at p. 715, and it was contended on the strength thereof that an assignee from a mortgagor must be served with a notice of sale if he is to be bound thereby. The facts there were as follows. The defendants in the suit before the Bombay High Court were the first mortgagees. The plaintiffs were puisne mortgagees of the property. The property had been advertised for sale by the defendants several times before the plaintiffs took any step in the matter. In April 1893, the defendants advertised the mortgaged property for sale and the plaintiffs filed a suit and obtained a rule nisi with an interim injunction restraining the defendants from proceeding with the sale. It was contended on behalf of the plaintiffs that the defendants had no power to sell at all because the mortgage-deed provided that notice should be given to the mortgagors or their assigns and the defendants had not given notice to the plaintiffs who were assigns of the equity of redemption. It was, however, found that the defendants had given a notice of sale to the mortgagors on August 31, 1891 three days before the plaintiffs had any interest in the equity of redemption and Starling, J., who decided the case observed :-"...as that appears to me to be a proper notice, I do not think that any further notice would be required to be given to any person who at that time was not an assign, in order to enable the defendants to sell under that notice; because I am of opinion that an assign must take things in the State in which he finds them, and cannot claim to alter rights, which have accrued before he has any authority to interfere." Commenting on this case, the learned commentators of Mullas Transfer of Property Act (Fifth Edition) at page 500 state:"If the mortgagor has transferred his interest, either to a purchaser or to a subsequent mortgagee, and the mortgagee is aware of it, he should give notice to the transferee, but not if the transfer has taken place after the mortgagee has already given notice to the mortgagor." Learned counsel appearing on behalf of the appellant wanted to press this observation into service by saying that as his client had purchased a portion of the property by a registered deed two years prior to the notice of sale it was incumbent on the mortgagee to give him a notice. This contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnity. 4. The English decision in Hoole v. Smith, (1881) 17 Ch D 434, referred to in the above Bombay judgment does not help the appellant before us. In that case the mortgage-deed provided that the power of sale was not to be exercised unless and until notice had been given in writing to the mortgagor, his executors, administrators or assigns to pay off the moneys for the time being due and owning on the said indenture of mortgage. Fry, J. observed in that case:"When I find the word "assigns" used in the power of sale as an alternative for Harrison, it is impossible that I can hold that it was sufficient for the Defendants to go on serving Harrison alone after he had assigned his equity of redemption. The object of the proviso was that any, assigns might be at liberty to intervene and pay off the mortgage, and no one could be more interested shall the second mortgagee in this right of intervention.? 5. The only other point raised on behalf of the appellant was that he was entitled to the value of the improvements effected by him on the portion of the property purchased under the provisions of S. 51 of the Transfer of Property Act. In our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727 , has any application to the facts of this case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]3. The point that the sale under the provisions of the mortgage-deed was invalid because of want of notice to the 16th defendant is not one of substanceThe language of this sub-section is clear and unambiguous. The section lays down in no uncertain terms that the requisite notice may be given to the mortgagor or one of several mortgagors where there is a number of them, the obvious idea being that the mortgagor who is given the notice is constituted the agent of the other mortgagors to receive the same. It may be hard on a person in the position of a mortgagor to get no notice under this section if he comes to learn that the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaintThis contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnityIn our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727  , has any application to the facts of this case.