9911796707
TMI Blog1957 (1) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge, by her brother, of his duties as Muthalpadi etc., in the Cochin Kovilakam. Thereafter in 1105, she executed, in favour of the defendants, a simple mortgage and also a Putakadom for an aggregate sum of ₹ 350. This debt in due course led to the decree and execution proceedings in O. S. No. 144 of 1109 on the file of the Irinjalakuda Munsiff's Court whereby the defendants themselves became -the purchasers of the property but subject only to the prior charge, to the extent of ₹ 500 under Ext. A. This Court sale was on 7-5-1112, Ext. I being the sale sannad. The defendants took delivery of the property subsequently on 6-5-1113 under Ext. V delivery Kychit. By Thulam 1118 the plaintiff's brother retired from his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts below had misled themselves in considering that the court sale in favour of the defendants was subject to and not free from encumbrance. According to learned counsel there should be a specific statement in the sale deed that the property was sold subject to encumbrance, if it was to be held to be so; otherwise the sale should be deemed to be free of encumbrances and he equated the rule of construction in case of sale inter vivos to that in invitum. It seems to me, however, that there is no justification for the proposition as stated by the learned counsel, On the other hand no sale is free from encumbrances unless there is an express provision to that effect. And court sales as contrasted with private sales are always without warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emnity against the encumbrances affecting the land. If such encumbrances turn out to be invalid, the vendor had nothing to complain of. For, he had got what he bargained for and his indemnity was complete. He cannot pick up the burden of which the land is relieved and seize it as his own property. The notion that after the completion of the purchase the purchaser is in some way a trustee for the vendor of the amount by which the existence, or supposed existence, of encumbrances had led to diminution of the price, and liable, therefore, to account to the vendor for anything that remains of that amount after the encumbrances are satisfied or disposed of, is without foundation. After the purchase is completed the vendor has no claim to par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge the mortgage and recover possession of the property , 5. The decisions in Marina Ammaji v. Bakhar Beg, AIR 1941 Mad 557 (D) and Satyanarayanamurthi v. Sathiraju AIR 1942 Mad 525 (E), relied on by the learned counsel for the appellant are only illustrations of sales free of encumbrances where part of the purchase money had been left with the vendee to pay of prior mortgages and the question was whether the reduction of the mortgage money under the Madras Agriculturists' Relief Act would redound to the benefit of the mortgagor and the court held it to be so. But they have nothing to do with the sale subject to encumbrance as we have here. 6. Difficult questions might have arisen if the liability under Ext. A had matured an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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