PETITIONER:
NARANDAS KARSONDAS
Vs.
RESPONDENT:
S.A. KAMTAM & ANR..
DATE OF JUDGMENT07/12/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SINGH, JASWANT
CITATION:
1977 AIR 774 1977 SCR (2) 341
1977 SCC (3) 247
ACT
Transfer of Property Act 1882 Sec. 5, 54 and 69__Mean-
ing of transfer-Sale--Power of sale without intervention of
Court--Whether extinguishes the right Of redemption---Indian
Registration Act 1908.Sec. 17--Whether equity of redemption
can be lost without execution of a registered
document--Indian Con-tract Act 1872--Sec. 202--Power coupled
with interest--Whether can be revoked-After power is acted
upon--Law of Property Act 1925.--Sec. 100(1)(/)-Distinction
between legal and equitable estate under English Law--Posi-
tion under Indian law.
HEADNOTE
In 1964, respondent No. 1 Society was registered as a
Housing Society. The Society wanted 12 plots to be con-
structed for its 12 members. The Society, therefore, pur-
chased a plot of land. In 1966, the Society mortgaged the
land and the incomplete structure in favour of respondent
No. 2. In March, 1971, the Special Liquidator of the Socie-
ty was appointed under s. 102 of the Maharashtra Co-
operative Societies Act, 1960. The mortgagee after demand-
ing the dues from the mortgagor advertised the public auc-
tion for the sale of the property. In the auction sale the
appellant was declared as the highest bidder. The auction
purchaser took the possession of the land and the incomplete
structure.
Society filed a dispute before the Officer on Special
Duty under the Maharashtra Co-operative Societies Act
against the auction purchaser and the mortgagee praying for
an injunction against the completion of the sale. The
Society in the meanwhile paid the mortgage money to the
mortgagee. The Officer on Special Duty delivered his judg-
ment in January 1975 and held that the Society was entitled
to redeem the property because the conveyance was not com-
plete. The appellant filed an appeal before the Maharashtra
State Co-operative Appellate Court. In the appeal, plaint
was allowed to be amended and a prayer for redemption was
allowed to be introduced. The appellate Court held that
there was no complete sale within the meaning of section
69(3) of the Transfer of Property Act 1882 and the equity of
redemption was, therefore, not lost and that the auction
price was grossly inadequate and that the sale was not after
a fair competition. One of the conditions of auction sale
was that if the mortgagor deposited the mortgage money in
court between the date of the sale and completion thereof
and if as a result thereof the mortgagee was to reconvey
the property to the mortgagor the auction purchaser Would be
entitled to the refund of the amount paid without any inter-
est and/or cost.
In an appeal by Special Leave the appellant contended:
(1) When under s. 69 of the Transfer of Property Act a
mortgagor confers on the mortgagee a power of sale through
court or without intervention of court, the power of sale
extends to the entire legal estate of the mortgagor.
(2) When such a power is conferred it is agency coupled
with interest under s. 202 of the Indian Contract Act 1872.
If the power is acted upon revocation even on payment of
mortgage money cannot nullify acts already done pursuant to
the said powers.
(3) Knocking down at an auction sale by the mortgagee
pursuant. to the power of sale extinguishes the mortgagor’s
right of redemption.
(4) In a suit for specific performance by auction pur-
chaser, the purchaser will be entitled to specific perform-
ance because it is a sale by mortgagor.
Dismissing the appeal,
342
HELD: (1) Under section 69(1)(c) a mortgagee has power to
sell without intervention of the court where power is con-
ferred by the mortgage deed and the mortgaged property or
any part thereof was on the date of the execution of the
mortgage deed situated in certain big towns. [347D-E]
(2) In India the word "transfer" is defined with refer-
ence to the word ,"convey". The word "transfer" in
English law in its narrower and more usual sense refers to
the transfer of an estate in the,land. Section 205 of the
Law of Property Act in England defines "conveyance as
including mortgage, charge, lease, assent vesting declara-
tion, vesting instrument". The word "conveys" in section 5
of the Transfer of Property Act and s. 17 of the Indian
Registration Act is that contract for sale in respect of
immovable property of the value of more than Rs.100 without
registration cannot extinguish the equity of redemption. In
India it is only on execution of the conveyance and regis-
tration of transfer of the mortgagor’s interest by regis-
tered instrument that mortgagors right of redemption will be
extinguished. The conferment of power to sell without
intervention of the Court in a mortgage deed by itself will
not derrive the mortgagor of his right to redemption. The
extinction of the right of redemption has to be subsequent
to the deed conferring such power. The right of redemp-
tion is not extinguished at the expiry of the period. The
equity of redemption is not extinguished by mere contract
for sale. [348B, D-E]
Abraham Ezra Issac Mansoor v. Abdul Latif Usman I.L.R.
1944 Bombay 549, approved.
Meenakshi Velu & Ors. v. Kasturi Sakunthala & Ors.
I.L.R. (1967) 3 Mad. 161, overruled.
Ellappa Naiker and Ors. v. Sivasubramania Manisaran
(1936) 71 Madras Law Journal 607, approved.
(3) Under the English doctrine, a contract of sale
transfers an equitable estate to the purchaser. In India
there is no equity or right in property accrued is favour of
the purchaser by the contract between the mortgagee and the
proposed purchaser. In India there is no distinction be-
tween legal and equitable estates. In India there can be
but one owner i.e. legal owner. [347G-H]
Rani Chhotra Kumari v. Mohan Bikram (1931) 58 I.A. 279
and Rambaran Prasad v. Ram Mohit Hazra & Ors. (1967) I SCR
293, followed.
(4) Under s. 100(1)(i) of the Law of Property Act, 1925,
if a mortgagee exercises power to sell the mortgaged proper-
ty by public auction or by private contract it is binding on
the mortgagor before completion of the sale unless it is
proved that the power was exercised in bad faith. The
English decisions are based on the said provision of the
English Law of Property ,Act and, therefore, they are not
applicable to India. [346 B-D]
Waring (Lord) v. London and Manchester Assurance Co.
(1935) Chancery 310 and Property & Bloodstock Ltd. v. Emer-
ton (1968) L.R. Chancery 94 distinguished.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1020 of
1975.
(Appeal by Special Leave from the Judgment and Order
dated the 18-4-1975 of the Maharashtra State Co-op. Appel-
late Court in Appeal No. 54 of 1975.)
J. L. Nain, U. R. Lalit, and V. N. Ganpure, for the appel-
lant.
V.M. Tarkunde, Sharad Manohar, P.H. Parekh and Miss
Manju Jetley, for respondent No. 1.
M.C. Bhandare, Mrs. S. Bhandare, N.S. Narasimhan,
K.C. Sharma, ,A. K. Mathur and ,4. K. Sharma, for respondent
No. 2.
343
The Judgment of the Court was delivered by
RAY, C.J. This appeal by special leave is from the
judgment dated 18 April 1975 of the Maharashtra State Co-
operative Appellate Court.
The question for consideration in this appeal is whether
a mortgagor can exercise his right of redemption after a
mortgagee under an English Mortgage with power to sell
mortgaged property without the intervention of the court
gives notice to the mortgagor to sell the mortgaged property
by public auction and sells it by public auction.
The appellant is the auction purchaser. The respondents
are Flora Co-operative Housing Society in liquidation the
mortgagors (hereinafter referred to as the Society) and the
Maharashtra Co-operative Housing Finance Society Ltd., the
mortgagee (hereinafter referred to as the mortgagee).
In 1964 the Society was registered as a Housing Society
with 12 members. The paid up capital of the Society was
Rs.21,000/-. The Society wanted 12 flats to be constructed
in one structure of ground and two upper floors. The
Society purchased plot No. 153 in Santa Cruz at Bombay,
measuring 1002 sq. yards. The price was Rs.1,02,000/-.
In 1966 the Society mortgaged the land and the
incomplete structure in favour of the mortgagee. The mort-
gage was for the sum of Rs.70,000/-. It was an English
mortgage. In 1968 the mortgagee advanced a further sum of
Rs.42,000/-.
In 1966 Fair Deal Builders entered into a contract with
Society to build. The work was stopped. Thereafter in 1967
the Society entrusted the work to Maharaja Builders. In
1968 the contract with Maharaja Builders was terminated.
The work was given in 1969 to Kamal Construction Company,
who abandoned it in incomplete stage.
On diverse dates between 29 August 1967 and 29 November
1970, notice was given by the mortgagee to the Society for
non-payment to the mortgagor and to sell the property by
public auction.
On 9 March 1971 the Assistant Registrar of Co-opera-
tive Societies, Maharashtra, appointed a Special Liquidator
of the Society under section 102 of Maharashtra Co-operative
Societies Act, 1960. The Assistant Registrar communicated
the order of appointment liquidator to the mortgagee on 22
April 1971. The order of appointment of a liquidator was
published in Maharashtra Government Gazette on 29 April
1971.
The mortgagee advertised through Government auc-
tioner for public auction of the property. The public
auction was held on 14 April 1971. The claim was for
Rs.1,22,888.22 paise. The appellant was declared the
highest bidder for Rs.1,31,001/-. The terms of sale inter
alia were that 25 per cent was to be paid in advance and the
balance in 30 days. The sum of Rs.33,000/- was paid as
6--1546SCI/76
344
25 per cent advance and the balance purchase price of
Rs.98,001/was paid to attorneys of the mortgagee. The
auction purchaser took possession on 17 April 1971.
On 13 August 1971 the Society filed a dispute before the
Officer on Special Duty under the Maharashtra Co-operative
Societies Act against the auction purchaser and the mortga-
gee for injunction against completing sale. The Society
obtained an ex-parte injunction restraining transfer. On
29 September 1971, the interim injunction was vacated.
Thereafter the Society filed an appeal against the said
order before the Appellate Tribunal.
In the meantime the appellant filed a writ petition in
the Bombay High Court under Article 227 of the Constitution.
On 16 June 1972 there was an interim order by the High Court
in the writ petition. The Society undertook not to
dispose of property until disposal of dispute. Both par-
ties were allowed to keep watchmen.
The Society borrowed a sum of Rs.1,31,000/- and paid
the same to the mortgagee on 15 October 1972.
On 16 January 1975 the Officer on Special Duty
delivered judgment. He held that the dispute was maintain-
able under section 91 of the Maharashtra Co-operative Socie-
ties Act. The Society was held not competent to challenge
the auction sale held on 14 April 1971. It was also held
that the validity of auction was not affected. The mortgagee
was held entitled to exercise power of sale as a secured
creditor without being affected by the winding up order
against the Society. It was also held that the mortgagee
did’ not commit any breach of the statutory provisions of
section 69 of the Transfer of Property Act. The sale was
pot vitiated. It was found that there was no irregularity
at the auction and there is no ground for setting aside
the-sale. The society was entitled to redeem the proper-
ty because the conveyance was not complete.
The auction purchaser filed before the Maharashtra
State Cooperative Appellate Court an appeal against the
said order. In appeal the plaint was allowed to be amended
and prayer for redemption was allowed to be introduced.
On 18 April 1975 the Maharashtra State Cooperative Appellate
Court dismissed the appeal and held that the dispute as
initiated by the Society fell within the ambit of section 97
of the Maharashtra Cooperative Societies Act. The Appel-
late Court further held that there was no complete sale
within the meaning of section 69(3) of the Transfer of
Property Act and the equity of redemption was therefore not
lost. It was further held that the auction price was
grossly inadequate. The auction sale was not a sale after
a fair competition.
The Mortgage Deed provided inter alia as follows :--
345
"it is hereby agreed and declared that
it shall be lawful for the mortgagees at any
time without any further consent on the part
of the mortgagors to sell the said mortgaged
premises ........ The aforesaid power shall
be deemed to be a power to sell or concur in
selling the said mortgaged premises in default
of payment of the mortgage money without the
intervention of the court within the meaning
of section 69 of the Transfer of Property
Act."
Clauses (7), (8) and (33) in the Conditions of Sale
may be referred to.
Clause (7) provided as follows. Upon payment of the
balance Of the purchase price, the purchaser shall be enti-
tled to a conveyance from the vendors. The vendors shall in
the conveyance of the property purchased by purchaser give
the usual covenant required of a limited owner against
encumbrances. The vendors shall give no other covenant
required of an absolute of full owner. The vendors shall
not be required to procure the consent of the mortgagors or
of any other person in the conveyance.
Clause (8) was as follows. After payment of the balance
of the purchase money the purchaser shall be entitled to the
rents and profits of the said property. The vendors as the
mortgagees are not in possession of the property and
will not do anything to deliver possession of the proper-
ty to the purchaser. The vendors as the mortgagees shall
not be able to give vacant or symbolic possession of the
property to the purchaser. On payment of the balance of
the purchase price the purchaser shall at his own cost be at
liberty to take such steps as the purchaser may deem neces-
sary for obtaining possession of the property from the
mortgagors.
Clause (33) provided as follows. If the mortgagors
shall deposit all the amounts due to the vendors as mortga-
gees in court or pay the same to the vendors or their attor-
neys between the date of sale and the completion thereof and
if as a result thereof the vendors have to reconvey the
property to them or if the vendors cannot thus proceed with
the sale and the sale is not completed on that account the
vendors shall return the said deposit to the purchaser
without any interest and/or costs and the vendors as such
mortgagees shall not be held liable for any damage.
Counsel for the appellant advanced these contentions.
First, under section 69 of the Transfer of Property Act a
mortgagor confers on the mortgagee a power of sale through
Court Or without intervention of court. The power of sale
is of the entire legal estate of the mortgagor. Second,
when such a power is conferred it is agency coupled with
interest under section 202 of the Indian Contract Act, the
agency cannot be revoked without payment to mortgagee.
Third,if the power is acted upon revocation even on payment
cannot nullify acts pursuant to powers. Reliance was placed
on sections 203 and 204 of the Indian Contract Act.
Fourth, if the act done pursuant to power is that the
property is put up for sale and it is knocked down it is an
act done by the mortgagee for mortgagor In
346
other words it is as if an act done by the mortgagor. The,
sale pursuant to the power is a subsequent act within the
meaning Transfer of Property Act and this subsequent act
will extinguish the mortgagor’s right of redemption.
Fifth, in a suit for specific performance by auction pur-
chaser the purchaser will be entitled to specific perform-
ance because it is a sale by mortgagor.
Counsel for the appellant relied on two English deci-
sions. These are: Waring (Lord) v. London and Manchester
Assurance Co. (1), and Property & Bloodstock Ltd. v. Emer-
ton(2) in support of the propositions that the mortgagor’s
right to redemption would be extinguished when the mortgagee
exercised the power of sale and the third party entered into
a binding contract to purchase the property.
The English decisions are based on the provisions of the
English Law of Property Act. The provisions create a statu-
tory power of sale, which gives to a mortgagee power to sell
the mortgaged property, and it means that the mortgagee has
power to sell out and out by private contract or by auction,
and subsequently to complete the conveyance. The English
decisions are that if a mortgagee exercises power under
section 100(1)(i) of the Law of Property Act, 1925, to sell
the mortgaged property by public auction or by private
contract it is binding on the mortgagor before completion
unless it is proved that he exercised it in bad faith.
It was said in the Property & Bloodstock case (supra)
that the contract for sale by the mortgagees to the pur-
chaser precludes the mortgagor from his right of redemp-
tion pending completion even if the property is sold subject
to one or more conditions. The English decision naturally
notices distinction between condition precedent and the
terms of contracts of sale, namely, conditions dealing with
matters of title for carrying out the contract. The mere
fact that the label "condition" happens to be attached to
conditions does not preclude its being in the latter catego-
ry of "condition" or matter of title. The condition that
the sale is subject to the reversioner’s licence being
obtained where necessary. is held in the English decision
to be commonly regarded as no more than a term of the
contract relating to title.
The provisions in the Transfer of Property Act relevant
to the purpose of present appeal are sections 54, 60 and
69. Under section 54 of the Transfer of Property Act, sale
is a transfer of ownership in exchange for a price paid or
promised or part-paid and partpromised. Such transfer in
the case of tangible immovable property of the value of
one hundred rupees and upwards, or in the case of a rever-
sion or other intangible thing can be made only by a regis-
tered instrument. A contract for the sale of immovable
property is a contract that a sale of such property shall
take place on terms settled between the parties.
An English Mortgage is defined in section 58(e) of the
Transfer of Property Act. Where the mortgagor binds himself
to repay the mortgage-money on a certain date, and transfers
the mortgaged pro-
(1) (1935) Chancery 310. (2) (1968) L.R. Chancery 94.
347
perty absolutely to the mortgagee, but subject to a proviso
that he will retransfer it to the mortgagor upon payment of
the mortgagemoney as agreed, the transaction is called an
English mortgage.
The Rights and Liabilities of Mortgagor are dealt with
in section 60 of the Transfer of Property Act. It is that
at any time after the principal money has become due, the
mortgagor has a right, on payment or tender, at a proper
time and place, of the mortgagemoney, to require the
mortgagee (a) to deliver to the mortgagor the mortgage-deed
and all documents relating to the mortgaged property which
are in the possession or power of the mortgagee, (b) where
the mortgagee is in possession of the mortgaged property to
deliver possession thereof to the mortgagor and (c) at the
cost of the mortgagor either to re-transfer the mortgaged
property to him or to such third person as he may direct, or
to execute and to have registered an acknowledgement in
writing that any right in derogation of his interest
transferred to the mortgagee has been extinguished. There
is a proviso that the right conferred by this section has
not been extinguished by the act of the parties or by decree
of a Court. The right conferred by section 60 of the Trans-
fer of Property Act is called a right to redeem. Therefore,
the said section 60 provides for a right of redemption
provided that the right has not been extinguished by the act
of parties.
Section 69 of the Transfer of Property Act deals with
mortgagees’ power of sale. Under the said section 69(1)(c),
a mortgagee has power of sale without the intervention of
the Court where power is conferred by the mortgage deed and
the mortgaged property or any part thereof was on the date
of the execution of the mortgage deed, situate within the
towns of Calcutta, Madras, Bombay or in any other town or
area which the State Government, may, by notification in the
official Gazette, specify.
The principal question in this appeal is whether the
right to redemption has been extinguished by any act of the
parties. The English decisions are based on the provisions
of the Law of Property Act, 1925. In England sale is ef-
fected by the contract of sale, and in India an agreement
for sale is not a sale or transfer of interest. In England,
a mortgagee gets an equitable interest in the property.
Under the English doctrine a contract of sale transfers an
equitable estate to the purchaser. The Court does not
assist the mortgagor by granting him a remedy unless there
is collusion on the part of the mortgagee.
In India there is no equity or right in property created
in favour of the purchaser by the contract between the
mortgagee and the proposed purchaser. In India, there is
no distinction between legal and equitable estates. The law
of India knows nothing of that distinction between legal
and equitable property in the sense in which it was under-
stood when equity was administered by the Court of Chan-
cery in England. Under the Indian law, there can be but one
owner that is, the legal owner. See Rani Chhatra Kumari v.
Mohan Bikram (1)
(1) (1931) 58 I.A. 279.
348
A contract of sale does not of itself create any inter-
est in, or charge on, the property. This is expressly
declared in s. 54 of the Transfer of Property Act. See
Rambaran Prasad v. Ram Mohit Hazra(1) & Ors. C) The fidu-
ciary character of the personal obligation created by a
contract for sale is recognised in section 3 of the Specific
Relief Act, 1963 and in section 91 of the Trusts Act. The
personal obligation created by a contract of sale is de-
scribed in section 40 of the Transfer of Property Act as an
obligation arising out of contract and annexed to the owner-
ship of property, but not amounting to, an interest or
easement therein.
In India, the word "transfer" is defined with reference
to the word "convey". The word "transfer" in English law in
its narrower and more usual sense refers to the transfer
of an estate in land. Section 205 of the Law of Property
Act in England defines: "Conveyance" includes a mortgage,
charge, lease, assent, vesting declaration, vesting instru-
ment. The word "conveys" in section 5 of the transfer of
Property Act is used in the wider sense of conveying owner-
ship.
The right of redemption which is embodied in section 60
of the Transfer of Property Act is available to the Mortga-
gor unless it has been extinguished by the Act of parties.
The combined effect of section 54 of the Transfer of Proper-
ty Act and section 17 of the Indian Registration Act is that
a contract for sale in respect of immovable property of the
value of more than one hundred rupees without registration
cannot extinguish the equity of redemption. In India it is
only on execution of the conveyance and registration of
transfer of the mortgagor’s interest by registered instru-
ment that the mortgagor’s right of redemption will be extin-
guished. The conferment of power to sell without interven-
tion of the Court in a Mortgage Deed by itself will not
deprive the mortgagor of his right to redemption. The
extinction of the right of redemption has to be subsequent
to the deed conferring such power. The right of redemption
is not extinguished at the expiry of the period. The
equity of redemption is not extinguished by mere contract
for sale.
The mortgagor’s right to redeem will survive until there
has been completion of sale by the mortagee by a registered
deed. In England a sale of property takes place by agreement
but it is not so in our country. The power to sell shall
not be exercised unless and until notice in writing requir-
ing payment of the principal money has been served on the
mortgagor. Further section 69(3) of the Transfer of Proper-
ty Act shows that when a sale has been made in professed
exercise of such a power, the title of the purchaser shall
not be impeachable on the ground that no case had arisen to
authorise the sale. Therefore, until the sale is complete by
registration the mortgagor does not lose right of redemp-
tion.
It is erroneous to suggest that the mortgagee is acting
as the agent of the mortgagor in selling the property. The
mortgagor exercises his right under a different claim. The
mortgagee’s right is-different from,
(1) [1967] 1 S.C.R. 293.
349
the mortgagor’s. The mortgagee exercises his right under a
totally superior claim which is not under the mortgagor, but
against him. In other words, the sale is against the mort-
gagor’s wishes. Rights and interests of the mortgagor and
the mortgagee in regard to sale are conflicting.
In view of the fact that only on execution of convey-
ance, ownership passes from one party to another it cannot
be held that the mortgagor lost the right of redemption just
because the property was put to auction. The mortgagor has a
right to redeem unless the sale of the property was complete
by registration in accordance with the provisions of the
Registration Act.
The decision in Abraham Ezra Issac Mansoor v. Abdul
Latiff Usman(1) is correct law that the right to redeem a
mortgage given to a mortgagor under section 60 of the
Transfer of Property Act, is not extinguished by a contract
of sale of the mortgaged property entered into by a mortga-
gee in exercise of the power of sale given to him under the
mortgage deed. Until the. sale is completed by a registered
instrument, the mortgagor can redeem the mortgage on payment
of the requisite amount.
The Madras decision reported in Meenakshi Velu & Ors. v.
Kasturi Sakunthala & Ors.(2) on which counsel for the
appellant relied is contrary to the view expressed in
Ellappa Naiker and others v. Sivasubramania Maniagaran,(3)
and the aforesaid Bombay decision.
We are entirely in agreement with the Bombay decision.
The Madras decision Meenakshi Velu & Ors. v. Kasturi Sakun-
thala & Ors. (2) which holds a contrary view on which coun-
sel for the appellant relied is wrong.
For the foregoing reasons, the appeal is dismissed with
costs to respondent no 1.
P.H.P. Appeal
dismissed.
(1)I.L,R, (1944) Bom. 549. (2) 1.1 .R, (1967) 3 Madras 161.
(3) (1936) 71 Madras Iaw Journal 607.
350