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Appeal from Appellate Decree No. 12 of 1959, decided on 5th March 1962.

Ss. 52, 60 & 63‑A S. 52 may not apply to involuntary alienation but principle of lis -pendens applies if proceeding is not fraudulent or collusive Purchase of share in equity of redemption either in Court sale or by private treaty cannot discharge mortgage debt‑No test enunciated in S. 63‑A fulfilled‑Mortgage not entitled to costs of improvement.

[Case‑law discussed.]

Abdul Malek for R. K. Bhattacharjee for Appellant.

T. H. Khan for Respondents.

This appeal arises out of a suit for redemption. The facts which have given rise to this appeal are briefly these: --‑

2. Defendant No. 2 Tarapada Bose and defendant No. 3 Sasanka Shekhar Bose, who are brothers, mortgaged the disputed properties to the Comilla Banking Corporation Limited, Mymensingh Branch for Rs. 1,500 by executing a mortgage bond on 20‑9‑38. The Comilla Banking Corporation Limited instituted the Mortgage Suit No. 398 of 1946 in the Second Munsif's Court; Sadar, Mymensingh, against the defendants Nos. 2 and 3, and got a preliminary decree (Exh. G) for Rs. 1,636‑9‑3 pies with costs, on 22‑12‑47. Final decree [Exh. G (1)] was passed on 18‑12‑50, for Rs. 1,639‑11‑3 pies. The Comilla Banking Corpora tion Limited was amalgamated with defendant No. 1, the United Bank of India on 8‑12‑51. On the same date, defendant No. 4 purchased the mortgage decree from defendant No. 1 by the kabala Exh. A(1) for Rs. 1,675‑7‑9 pies. On 21‑3‑52, defendant No. 4 purchased the share of defendant No. 3 in the equity of redemption for Rs. 1,500 by the kabala Exh. A. After purchase of the mortgage decree, defendant No. 4 started the Mortgage Execution Case No. 52 of 1952 in the Second Munsif's Court, Sadar, Mymensingh, against defendants 2 and 3 and purchased the mortgaged properties in the Court sale on 15‑11‑52, for Rs. 1,700‑6‑6 pies. The sale was confirmed on 27‑12‑52. Defen dant No. 4 took delivery of that possession of the properties through Court on 25‑9‑53.

3. In 1943, the Calcutta National Bank Limited, Mymensingh Branch, instituted Money Suit No. 13 of 1943 in the Court of the First Subordinate Judge, Mymensingh against defendant No. 2, and the suit was decreed on 5‑1‑44. On the basis of the decree, the Calcutta National Bank Limited started Money Execution Case No. 13 of 1948 against defendant No. 2 and purchased the mortgaged properties on 10‑5‑49. Symbolical possession was taken through Court on 29‑12‑49.

4. Plaintiff (the State Bank of Pakistan) became the Official Liquidator of the Calcutta National Bank on 25‑5‑53. On 11‑6‑55 the plaintiff instituted the present suit for redemption after coming to know of the previous mortgage decree, and of the purchase of the mortgaged properties by defendant No. 4. The case of the plaintiff is that it is entitled to redeem the properties as Calcutta National Bank Limited acquired interest in the equity of redemp tion by purchase on 10‑5‑49, i.e., before the sale of the properties in execution of mortgage decree on 15‑11‑52, and as the Calcutta National Bank was not made a party to the final decree or to the mortgage execution proceedings.

5. Defendant No. 1 (United Bank of India) and defendant No. 4 filed written statements. Defendant No. 4 died during the pendency of the suit and his heirs were substituted. Out of the heirs of defendant No. 4, defendant No. 4 (kha) adopted the written statement filed by defendant No. 4. The case of the contesting defendants is that as the auction purchase of the mortgaged properties regarding the share of defendant No. 2, by the Calcutta National Bank took place on 10‑5‑49, i.e., during pendency of the mortgage suit, the transfer was hit by section 52 of the Transfer of Property Act. It is further alleged that the plaintiff's right of redemption, if any, was lost after the sale of the mortgaged properties on 15‑I1‑52, in the Mortgaged Execution Case No. 52 of 1952, of the Second Munsiff's Court, Sadar, Mymensingh.

6. The learned Munsif held that plaintiff's claim of equity of redemption could not be maintained, because the plaintiff became interested in the equity of redemption during the pendency of the mortgage suit, and that it had no right of redemption after the sale of the mortgaged properties in Mortgage Execution Case No. 52 of 1952 of the Second Munsif's Court, Mymensingh, Sadar. Accordingly, the suit was dismissed.

7. On appeal, the learned Subordinate Judge also held that plaintiff's right of redemption and the suit for redemption were barred under section 52 of the Transfer of Property Act. The learned Judge also held that the final decree in the mortgage suit, and the execution proceedings on the basis of the final decree started by defendant No. 4, were not collusive or fraudulent. Accordingly, the appeal was dismissed. Hence, this second appeal at the instance of the plaintiff.

8. The first point urged by Mr. Abdul Malek, the learned Advocate for the appellant, is that the final decree in the mort gage suit, and the execution proceedings on the basis of final decree, were all fraudulent and collusive, as the Calcutta National Bank was not made a party to these, although it acquired interest in the equity of redemption before the final decree on 18‑12‑ 50, and that as such the principle of lis-pendens shall not come into operation. In the plaint, the final decree, or the sale in execution of the final decree was not challenged as fraudulent or collusive. For the facts that defendant No. 4 started the Mortgage Execution Case No. 52 of 1952, without making the Calcutta National Bank a party to the execution case, it cannot be held that the execution proceedings were fraudulent or collusive. The Calcutta National Bank purchased the interest of defendant No. 2 in the mortgaged properties and some other property on 10‑5‑1949, in Money Execution Case No. 13 of 1948 while the Mortgage Suit No. 398 of 1946 was pending against defendants 2 and 3. The purchase by the Calcutta National Bank made during the pendency of the mortgage suit, the proceedings of which was not fraudulent or collusive, was hit by the rule of lis-pendens under section 52 of A the Transfer of Property Act, and so that Calcutta National Bank was not a necessary party either to the final decree or to the mortgage execution proceedings. It is now well‑settled that though section 52 of the Transfer of Property Act itself may not apply to involuntary alienations, the principle of lis-pendens applies to such alienations. [See Moti Lal v. Karrab‑ul‑din and another (24 I A 170)].

9. The second point urged by the learned Advocate for the appellant is that the sale held in execution of the mortgage decree was a nullity, as the mortgage debt was discharged by reasons of the purchase of the mortgaged properties by defendant No. 4 from defendant No. 3 before the start of the mortgage execution case, and as there was nothing due for which the mortgage execution could proceed. In support of this contention, reference has been made to the cases reported in 12 C W N 745, I L R 1928 Rang. 266, A I R 1934 Oudh 99 and A I R 1936 Pat. 404. In the case of Mutty Lal Pal v. Nandu Lal Neogi and others (12 C W N 745), the mortgagor died leaving three sons, who became equally entitled to the equity of redemption and one of the sons sold his 1/3rd share in the equity of redemption to the plaintiff mortgages. In the suit brought by the mortgage to realise his mortgage debt, he offered to give credit for the 1/3rd share of the mortgage dues. The other mortgagors claimed deduction from the mortgage debt the full value of the share purchased by the mortgage. It was held that the plaintiff was entitled to give credit only for that which his vendor would have been liable to pay, namely, one‑third of the mortgage debt. This case does not support the contention that the entire dues of the mortgage were satisfied by purchase of the interest of defendant No. 3 for Rs. 1,500.

10. In the case of Nyaunglebin Co‑operative Bank v. Maung Ba U and others (A I R 1928 Rang. 266), a mortgage purchased part of the property mortgaged to him at a Court sale subject to the mortgage. In that case also it has been held that the purchase had the effect of discharging a proportion-able share of the debt.

11. In the case of Kunj Behari Lal v. Bisheswar Singh and others (A I R 1934 Oudh 99), one of the mortgagors sold some property, other than the mortgaged property, to the son of the mortgage. In the deed of sale, it was stipulated that the entire purchase money would be paid by the vendee to the mortgage. It was found that the vendee and the mortgage actually constituted as one person. It was held that by the purchase, the mortgage was redeemed In respect of the vendor's share in the mortgaged property. This case also does not go to support the contention that by the purchase of the share of defendant No. 3 in the mortgaged properties, the total mortgaged debt was discharged.

12. In the case of Kedar Nath Geonka and another v. Bhagwat Prasad Kumar and others (A I R 1936 Pat. 404), the mortgagee accepted a sale of some of the mortgaged properties from the mortgagor in satisfac tion of the entire mortgage debt. It was held that the mortgage debt was extinguished by the sale and the relationship as mort gagor and mortgagee ceased to exist. But in the present case, defendant No. 3 sold the eight annas share belonging to the equity of redemption to the mortgage. There was no stipula tion in the sale‑deed that the full dues of the mortgage decree would be satisfied by this sale.

13. Mr. T. H. Khan, the learned Advocate for the respon dent has contended that the purchase of a share in the equity of redemption by the mortgagee discharges only a portion of the mortgage debt, which was chargeable on that share, and that as such, the purchase cannot extinguish the entire mortgage debt.

In support of this contention, reference has been made to the case of A. A. R. Pounnambala Pillai and three others v. Annamalai Chettiar and three others (I L R 43 Mad. 372).

14. The purchase of a share in the equity of redemption by the mortgagee, whether in Court sale or by a private treaty, cannot have the effect of fully discharging the mortgage debt. It will discharge only that portion of the mortgage debt which was charge able over the share purchased. If a part of the mortgaged property be purchased by a sole mortgage, or by all the mortgagees, when B there are more than one, the integrity of the mortgage is thereby broken up and the owner of the remainder of the property is entitled to redeem his own share upon payment of a proportionate part of the amount due on the mortgage. But the mortgage does not, by reason of such purchase, become extinguished. This is clear from the provisions of last paragraph of section 60 of the Transfer of Property Act.

15. This view finds support in the cases in I L R 20 All. 23, I L R 22 All. 284, 12 C W N 745 and I L R 43 Mad. 372. In the Full Bench decision in the case of Nand Kishore v. Raja Hari Raj Singh and others (I L R 20 All. 23), it has been held that the purchase of a part of the mortgaged property by a mortgagee, subject to his mortgage, has not necessarily the effect of fully discharging the mortgage. In the case Bisheshur Dial and another v. Ram Sarup (I L R 22 All. 284), which is also a Full Bench decision, it has been held that where a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him. The same view has also been held in the case of Mutty Lal Pal v. Nandu Lal Neogl and others, with the further observation that there would be no difference between the purchase at a Court sale and a purchase by a private treaty.

16. In the case of A. A. R. Ponnambala Pillai and three others v. Annamali Chettiar and three others, it has been laid down that in the absence of fraud, the purchase by the mortgagee in Court auction of the equity of redemption in some items of the mortgaged properties, discharges that portion of the mortgage debt which was chargeable on those items, that is, it discharges a portion of the mortgage debt which bears the same ratio to the whole mortgage debt, as the value of those items bears to the value of all the mortgaged properties.

17. In the present case, the final decree [Exh. G (1)] was passed for Rs. 1,639‑11‑3 pies. By the purchase of the share of defendant No. 3 in equity of redemption, half the decretal dues, that is, Rs. 819 and odd would be discharged, but the execution case was started by defendant No. 4 for total decretal dues, and he purchased the properties for Rs. 1,700‑6‑6 pies on 15‑11‑1952. Delivery of possession was taken by him through Court on 25‑9‑1953. For the fact that the execution case was started for the total decretal due, that is, for more than what he was entitled to get at the time of the execution, it cannot be held that the sale held in the execution proceeding was a nullity.

18. There is a distinction between a void sale, which is a nullity and irregular or illegal sale, which is voidable and requires to be avoided. If a sale takes place absolutely without any jurisdiction or in contravention of a public policy, .it may be treated as a nullity or void. In such a sale, the person affected need not take any step to have it set aside, because it shall be deemed not to have any existence at all. In other words, under such a sale the purchaser acquires no title at all. A sale in contravention of statutory provisions cannot be void or nullity, because it cannot be held that the Court possessed no jurisdiction over it; but in such a case it assumed jurisdiction in an irregular or illegal manner, and the sale is liable to be set aside, if the person affected takes appropriate steps within the prescribed period or when he first claims to have come to know such illegal or irregular sale. [See the case of Santosh Lal Saha and others v. Dakhina Ranjan Choudhury and another (5 D L R 81)]. As the sale in the present case was not a nullity, the suit of the plaintiff for redemp tion of the mortgaged properties is not maintainable.

19. The last point urged by the learned Advocate for the appellant is that the mortgagee would not be entitled to the cost for improvements. Section 63‑A of the Transfer of Property Act provides that the mortgagor is liable to pay the cost of the improvements, only if (1) they are necessary to preserve the property from destruction or deterioration or (2) necessary to prevent the security from becoming inadequate or (3) done under the orders of a Public authority. If the improvements fulfils any of these tests, the mortgagee would be entitled to the cost as an addition to the principal money secured by the mortgage. In C this case, trial Court held that improvements were made by the defendant, and the motive in making the improvements was not bad or mala fide and that the improvements would benefit all, who would come and occupy the mortgaged properties. The lower Appellate Court did not deal with the question of improve ments. It appears the improvements do not satisfy any of the tests already stated. So the mortgagee would not be entitled to, the cost of the improvements. This question, however, is not of importance as the suit for redemption has been dismissed.

20. There is no ground to interfere with the judgment of the lower Appellate Court. The appeal is dismissed with costs. The judgment and decree passed by the lower Appellate Court are affirmed.

S. B./A. H.

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