1. This is an application for ad-interim injunction filed in C. S. No. 322 of 1954.
2. The facts are: The Plaintiff v. Narasimhachariar is a retired Assistant Secretary of the Government of Madras. The Defendant is a well known credit institution of this City with many branches viz. the Egmore Benefit Society, 3rd Branch Limited. The Society is run On the principles of a Nidhi or Permanent Fund viz. takes deposits and lends out moneys on first mortgages, jwellery etc. In fact but for such credit institutions the industrial and commercial life of this city will not be able to progress.
The plaintiff executed a mortgage in respect of his houses No. 33 Gengu Reddi Road & No. 64 Egmore High Road, in favour of the defendant Society for Rs. 32.000/- payable With interest at 71/2 per cent per annum. This amount was borrowed to pay off a prior mortgage of 1947 executed in favour of one Thaiyanayagi Ammal. This loan was a special loan under the bye-laws of this Society repayable within one year viz. on or before 6-12-1951. The mortgage deed expressly conferred upon the mortgagee the power of sale as specified in Section 69. Transfer, of Property Act. Inasmuch as the Plaintiff was paying regularly interest till June 1952 the Society did not attempt to recall the loan. The plaintiff defaulted from June 1952 and after he had done so for three months statutory notice of sale as per Section 69, Transfer of property Act was issued by the defendant Society to the plaintiff on 14-10-1952. When the period of three months of the said notice expired in January. 1953, the plaintiff paid Rs. 1000/- towards the accumulated arrears in February 1953 and promised to clear off the arrears of interest and the principal amount within a short time. This promise was not kept up and therefore the defendant Society Issued a second statutory notice as per Section 69, Transfer of Property Act on 21-9-1953.
On the expiry of the three months the defendant Society on 7-1-1954 intimated to the plaintiff that 17-3-1954 had been fixed for sale of the mortgaged properties and the date was so fixed so that even before the properties were actually sold the plaintiff could pay the mortgage money and save the properties. Then the plaintiff put up some propositions for the defendant Society to collect the rent and credit the same towards its loan. These propositions were accepted & the defendant Society states that the plaintiff has double-crossed it and it had not been able to collect any rent, On the date fixed for sale 17-3-1954 on the application: of the plaintiff the Society adjourned the sale to 19-6-1954. This was to enable the plaintiff to pay up as he desired without prejudice to the statutory notice of sale dated 21-9-1953. But inasmuch as the plaintiff did not stick up to his undertaking and interest was accumulating, the properties were put up for sale on 19-6-1954, There were no bidders and the sale was adjourned to 24-7-1954. . There was very wide advertisement of the sale by circulations of auction catalogues and publication in the well-known dailies 'The Hindu' and 'Indian Express'. The plaintiff thereupon rushed to the City Civil Court and filed O. S. 1198 of 1954 and obtained an interim injunction on the eve of the sale. This was contested by the defendant Society on notice being served upon them. Seeing that the sale could not be averted the plaintiff proposed certain terms & this was accepted by the defendant Society. The consent contained the following terms:
'The plaintiff will pay Rs. 4500-0-0 towards the amount due on or before 5-10-1954 to the defendant Society at its office. In default of such payment, the defendant Society can bring the property to sale without any further notice to the mortgagor. The defendant will not exercise the power of sale on or before 5-10-1954.'
The plaintiff again did not keep up his undertaking and is said to have tendered according to the defendant Society Rs. 2000 and according to the plaintiff Rs. 1500 on 5-10-1954 and this was refused by the Secretary of the defendant Society. Therefore the sale was fixed to take place on 23-10-1954 and there was wide circulation of the sale both by handbills, advertisements in 'The Hindu', 'Indian Express' and 'Swadesamitran'. On 23-10-1954 the defendant Society states that the plaintiff and his wife scared off the bidders by telling them that the plaintiff was going to file the present suit in the High Court. The sale was therefore adjourned to 6-12-1954. It is in these circumstances that the present suit has been filed for a declaration that the power of sale vested in the defendant Society under Section 69. Transfer of Property Act and under the mortgage deed dated 6-12-1950 is not valid and for an injunction restraining the defendant from selling the properties on the ground that he is an agriculturist entitled to the benefits of Madras Act 5 of 1954. The plaintiff has also filed this application for an adinterim injunction.
3. The points which arise for consideration are (a) whether S, 69, Transfer of Property Act offends the equal potection of law guaranteed under Article 14 of the Constitution; (b) whether it offends Article 19(1)(f) of the Constitution guaranteeing the right to all citizens to acquire, hold and dispose of property; and (c) whether the plaintiff is entitled to the benefits of Madras Act 5 of 1954.
4. On a review of the entire circumstances of the case, I have come to the conclusion that Section 69, Transfer of Property Act does not offend Article 14 or Article 19(1)(f) of the Constitution of India and secondly, that the plaintiff is not entitled to the benefits of Act 5 of 1954. Here are my reasons.
5. Point (a): Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India'.
The Article applies to citizens as well as to non-citizens of the Indian Union. The first part of the Article is of Irish origin. Section 40(1) of the Constitution of Eire provides that
'all citizens shall, as human persons, be held equal before the law, and further proceeds to add that 'this shall not be held to mean that the state shall not in its enactments have due regard to differences of capacity, physical and moral and of social function'.'
The latter part of the Article, namely, 'Equal protection of the laws' is of American origin. Section 1 of the 14th Amendment to the U. S. A.Constitution states:
'No state shall ...... deny to any person withinits jurisdiction the equal protection of the laws'.
Both laws, substantive and adjective, are equally subject to the constitutional limitations under Article 14 unless of course the change in procedure is merely technical or formal. (--'Traux v. Carrigan', (1921) 257 U. S. 312 (A); -- 'Duncan v. Missouri'. (1893) 152 U. S. 377 (B); -- 'State of West Bengal v. Anwar Ali Sarkar', : 1952CriLJ510 (C); Weaver Constitutional Law p. 407 referred to:) --'Dr. Khare v. State of Delhi', : 1SCR519 (D); -- 'Mohta and Co. v. Viswanatha Sastri', : 26ITR1(SC) (E).
6. The scope and extent of the fundamentalright of equal protection guaranteed under Article 14can best be set out in the following extract fromBasu's Commentary on the Constitution of India(Second Edition) -- Sarkar & Sons Ltd. Page 71:(a)The guarantee of equal protection cannotinterfere with the 'police power' of the State,-- to prescribe regulations to promote the health, peace, morals and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity, for which legislation of a special character is often necessary. (Burdick Law of the American Constitution pages 603-611). Thus 'Special burdens are often necessary for general benefits (such as) for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for the purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little inconvenience as possible, the general good, though in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions, (ibid 'P. 595') And in the exercise of such powers the Statehas a wide discretion in determining whatmeasures are necessary for its own protectionand properly to promote the safety, peace andgood order of its people. -- 'Terrace v. Thompson', (1923) 263 U. S. 197 (P).The discretion has been so widely interpretedin the U.S.A. as to support the 'adoption by theState of--'whatever economic policy may reasonably bedeemed to promote public welfare' -- 'Nebbiav. Newyork', (1934) 291 U.S. 502 (G); e.g. protection of the public from the evils of excessive competition, exemption, exempting certain trades or occupation from its antimonopoly legislation; preservation of competitionwhere necessary; restricting the right to engage in certain business or professions.
On the same principle, though the equal protection extends to aliens resident within the jurisdiction of the State, and allens are not to be discriminated against simply on the ground of alienage, they may be subjected to special restrictions on the ground of peril to the public welfare. Again, owing to difference in the nature of their allegiance to the state, classification may be made between citizens and aliens as regards acquiring land. It is reasonable to deny aliens the use of Shotguns for protecting game, but it is hot reasonable to deny them the right to work for a living.
(b) The guarantee of equal does not prevent the State from applying different laws or different systems of judicature to different parts or local sub-divisions of the country according to local circumstances, for the clause does not secure to all persons the benefit of the same laws and same remedies. Equal protection of the laws is a pledge of the protection of equal laws. -- 'Bowman v. Lewis', (1879) 101 U.S. 22 (H); 'Yick Wo v. Hopkins', (1886) 118 U.S. 358 (I).
(c) Lack of equal protection is to be found in the existence of an invidious discrimination, not in the mere possibility that there will be like or similar cases which will be treated more leniently. The Legislature is entitled to hit the evil that exists and is not bound to take account of new and hypothetical inequalities, that may come into 'existence' as time passes or as conditions change. -- 'Southern Rly. Co. v. Greene', (1910) 21S U.S. 400 (J); 'Queenside Hills Realty Co. v. Saxl', (1945) 328 U.S. 80 (K).
(d) Inequalities of 'minor' importance do not render a law invalid on the ground of infringing equal protection' (Cooley Constitutional Limitations 8th Edn. Vol. II pp. 816-817). Thus 'Changes in the conduct of trials and the rules of evidence are not prohibited. The distinction Is- not between substantive and adjective law, but between substantial and unsubstantial changes. (Willis Constitutional Law P. 517).
The prescribing of different modes or procedure and the abolition of Courts and the creation of new ones leaving untouched all the substantial protection with which the existing law surrounds the person accused of crime are not considered within the constitutional inhibition' (1693) 152 U.S. 377 (B).
In short, mere production of inequality- is not enough to hold that equal protection has been denied. For, every selection of persons for regulation produces inequality, in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be 'actually and palpably unreasonable and arbitrary' --'Arkansas Natural Gas Co. v. Arkansas Railroad Commission', (1922) 261 U.S. 379 (L).
'The rule of equality permits many practical inequalities. And necessarily so. In a classification (or governmental purposes, these cannot be any exact exclusion or inclusion of persons and things'. -- 'Mangoun Devis v. Illinois Trusts & Saving Bank', (1898) 170 U.S. 283 (M).
In other words, a classification having some reasonable basis, does not offend against the clause merely because it is not made with mathematical nicety, or because, in practice, it results in some inequality. -- Lindsley v. Natural Carbonic Gas Co., (1910) 220 U.S. 61 (N).'
7. The illustrative American decisions which may be studied with profit in this connection expounding the 14th Amendment are: (1921) 257 U.S. 312 (A); 'Handerson v. Wick-ham', (1875) 92 U. S. 259 (O); 'Radice v. New York' (1923) 264 U.S. 292 (P); 'Louisville Gas and E. Co. v. Coleman', (1927) 277 U.S. 32 (Q); 'Metropolitan Casualty Insurance Co. v. Brownell', (1934) 294 U.S. 580 (R); New York Rapid Transit Corp. v. New York', (1937) 303 U.S. 573 (S); 'Skinner v. Oklahama', (1941) 316 U.S. 535 (T); 'Takahashl v. Fish & Game Cornmission', (1947) 334 U.S. 410 (U); and the earlier of quoted decisions (1886) 118 U.S. 356 (I); 'Barbier v. Connolly', (1884) 113 U. S. 27 (V); (1910) 220 U.S. 61 (N); (1893) 152 U.S. 377 (B); (1898) 170 U.S. 283 (M). The value of American decisions in construing Article 14 has been stressed in -- 'Sri. Champakam Durairajan v. State of Madras', : AIR1951Mad120 (FB) (W).
8. The illustrative Supreme Court decisions and the decisions of this Court expounding Article 14 are: -- 'Chiranjit Lal. v. Union of India : 1SCR869 (X); 'State of Bombay v. F. N. Balsara AIR 1951 SC 318 (Y & Z); : 1952CriLJ510 (C); 'Kathi Raning Rawat v. State o f Saurashtra', : 1952CriLJ805 (Z1); 'Lachman Das v. State of Bombay', : 1952CriLJ1167 (Z2); 'Kedar Nath v. State of West Bengal', : 1953CriLJ1621 (Z3); 'Habeeb Muhammad v. State of Hyderabad', : 1953CriLJ1158 (Z4); 'Ram Prasad Narayan Sahi v. State Of Bihar', : 4SCR1129 (Z5); 'Raja Kulkarni v. State of Bombay', AIR 1954 SC 73 (Z6); 'In re C. G. Menon', : AIR1953Mad729 (Z7); : AIR1951Mad120 (W); 'Krishna Pillal v. Parukutty Ammal', : AIR1952Mad33 (Z8); 'Srinivasa Aiyar v. Saraswati Ammal', : AIR1952Mad193 (Z9); 'Syed Muhammad & Co. v. state of Madras', : AIR1953Mad105 (Z10); 'Lakshmindra Theertha Swamiar v. Commr. Hindu Religious Endowments, Madras', : AIR1952Mad613 (Z11); 'V. G. Row v. State of Madras', : AIR1951Mad147 (FB) (Z12); 'Krishnamurthy v. Venkateswaran'. : AIR1952Mad11 (Z13); 'South India Bank Ltd. v. Pitchuthayappan', : AIR1953Mad326 (Z14); 'Dandaiah v. Venkatarama Dikshitulu', : AIR1954Mad500 (Z15).
9. In regard to these principles and propositions set out above succinctly indicating the scope and extent of the Fourteenth amendment and Article Fourteen reference may be made to page 204 of Corwin in his 'Constitution, what it Means today'; Willis Constitutional Law (1936) Edn.), pages 579-580; Willoughby on the Constitutional Law of the United States, 2nd Edition, page 1937, paragraph 1273; Colley in his Constitutional Limitations, 8th Edn. volume II, pages 803 to 813; and Rottschaefer on Constitutional Law, Harnbook Series, page 458, in which the principles set out above are fully expounded. In regard to India reference may be made to the standard commentaries expounding these principles set out in the order of exhaustiveness viz. A.I.R. Commentaries on tile Constitution of India, Vol. I Article 14 Note I, pages 203 to 234; Aggarwalla's Fundamental Rights and Constitutional Remedies, Vol. I Chapter III, pages 112 to 197; Basu's Constitution, of India, 2nd Edition, pages 59 to 78 and Raghavachari's Constitution of India, pages 36 to 43. N. Arunachalam Treatise on constitutional Law P. 264 and foll. In this connection attention may also be invited to the Second Edition of American Constitutional Development by Swislier (1954) page 329, wherein there is an interesting exposition of the meaning intended by the sponsors of the Fourteenth Amendment added in 1870.
10. Thus, the State is entitled to classify according to objects or territories when such classification Is based upon a rational ground which is relevant to the matter in question. In --'State of Punjab v. Ajaib Singh', : 1953CriLJ180 (Z16); it was held that as classification can be made on geographical basis, the fact that Abducted Persons Recovery and Restoration Act (65 of 1949) was extended only to certain specified States does not make it invalid under Article 14 and that the consent of the several states to the passing of the Act indicates that the Muslim abducted persons in these States form one class having similar interest to protect and therefore the inclusion of all of them in the definition of abducted persons cannot be called discriminatory. In --'Rampratap Jaidayal v. Dominion of India', : AIR1953Bom170 (Z 17); it was held that the State is not compelled to extend application of particular law to all territories within the jurisdiction of the State. In --'Md. Habibuddin v. Govt. of Hyderabad', AIR 1953 Hyd 157 (Z18); relating to Administration of Evacuee Property Act (1950) it was held that it was not bad as it was based on valid classification and that territorial classification also it a good ground of classification
A part from this, it has been held by the Supreme Court of the United states that the equal protection clause contemplates persons and classes of persons, that it has no reference to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within places or municipalities for which such regulations are made. Hence, the equal protection clause does not prevent a State from arranging and parcelling out the jurisdiction o the several Courts at its discretion. The equal protection clause is not violated by any diversity in the jurisdiction of the several Courts as to subject matter, amount or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress. Each State has the right to make political sub-divisions of its territory for municipal purposes and to regulate their local justice. It may establish one system of Courts for cities and another for the rural districts, one system for one portion of its territory and another system for another portion. Thus, it was held in (1879) 25 Law Ed. 989 (H); that where a right of appeal to the Supreme Court of the State was provided in case arising in certain Districts, while in cases arising in certain other districts a right of appeal only to another Court was provided, the equal protection clause was not violated. The above principles are applicablein the construction of Article 14 of the Constitutionof India.
The words 'within the territory of India' at the end of the Article do not mean that there must be one uniform rule throughout all the territories comprised within the Union. A law which applies only to one State and not to the others and a law which does not apply to the entire State some of its provisions applying to the metropolitan area and other municipalities of the State cannot be attacked under Article 14 on that ground: --'Globe Theatres Ltd. v. state of Madras', : AIR1954Mad690 (Z19); 'Asiatic Engineering Co. v. Achhru Ram', : AIR1951All746 (FB) (Z20). The mere fact a different procedural law has been laid down' for a particular Court or for the Court in a particular town does not make the law void as infringing the equal protection clause: --'Ocampo v. United States', (1914) 234 U. 8. 91 (Z 21). But even classification on a territorial basis must be reasonable having regard to the object of the legislation.
11. Bearing these principles in mind let us examine whether Section 69. Transfer of Property Act offends the fundamental and equal protection guaranteed by Article 14 of the Constitution.
12. The mortgagee's power of sale without the Intervention of the Court was long recognised by the English Law of mortgages. This power of sale has been exercised by the mortgagee in England from very ancient times. Indeed in this respect the power of the mortgagee has been much widened with time so that while originally the power to be exercised must have been conferred by the deed it is now presumed by force of statutory enactment unless it be excluded or limited by the deed see Fisher and Lightwood's law of Mortgage, 7th Edition, page 400; and Coote's Law of Mortgages, 9th Edition, Vol. II Section 2, page 911 and following. Therefore, when the English traders came to India and settled in the Presidency Towns of Bombay, Calcutta and Madras they carried with them in their large money-lending transactions the English law. There was a sharp distinction however between the law as administered in the Presidency Towns and in the mofussil where in course of time mortgages came into existence between parties who were not Europeans.
13. In the Presidency Towns where the parties were Englishmen the English Law was applied and the stipulation for a power of sale was held valid': -- 'Doucett v. Wise', 3 Suth W. R. 157 (Z22), When either or both the parties were Indians and the mortgage was executed in these Presidency Towns where business was carried on, on European lines it was held that the mortgagor who gave a definite power of sale probably understood perfectly well what he was doing and that more inconvenience would be caused by obstructing the enforcement of such power than lay giving relief under it. Thus, in the Island of Bombay and in the town of Karachi in Sind where it was apparent from the mortgage deed that the parties intended to be governed by the English Law, the stipulation giving the mortgagee the power of sale was held valid: See the catena of decisions on page 1255 of Vol . II of the AIR commentaries under the Transfer of Property Act. Section 69 Note 4. There is no express decision on the point of the Calcutta and Madras High Courts. This was the State of things obtaining in the Presidency Towns before the coming into existence of the Transfer of Property Act in 1882 and the Amendment in 1885.
14. The law relating to mortgages in the mofussil between parties who were not Europeans in the Bombay and Bengal Presidencies were governed by local Regulations: Bombay Regulation 5 of 1837; Bengal Regulation 17 of 1806. None of the Regulations, recognised the validity of the power of sale without the Intervention of Court: --'Keshav v. Bhavanji', 8 Bom H. C. R. 142 (Z23); 'Bhuwanee Churu v. Jukiesen', (1847) S. D. A. 429 (Z 24). But in the Bombay Presidency the High Court was in favour of holding the power of sale valid even in the mofussil if it was apparent from the transaction that the parties intended to be governed by the English Law: --'Pitambar Narayandas v. Vanmali Shamji', 2 Bom 1 (Z 25), In other cases the power was held Invalid. 'Jagjiwan' Nanabhai v. Shridhar', 2 Bom 252 (Z 26). In the Bengal Presidency such a power was held repugnant to to the spirit of the Regulation and hence was not recognised even where the mortgage was in the English form (For Law before the Act see Chitale and Annajli Rao's Transfer of Property Act AIR Publication Third Edn. p. 1255).
15. In one case the question went up to the Privy Council but their Lordships negatived the power of sale not on the ground that it was invalid (being in that given case of default of payment of interest) but on the ground that it was of a penal nature: -- 'Vencatavarada Iyengar v. Venkata Luchhmamal', 23 Suth WR 91 (Z27).
16. There can be no doubt that the general consensus of opinion was that when such powers of sale by the mortgagee were rarely found inserted in the contracts executed in the mofussil and were repugnant to the spirit, if not to the letter of the Regulations and by themselves were unsuited to the circumstances of rural parts where such a power readily lent itself to abuse. In 8 Bom H.C.R. 142 (Z 23), Melville J. Stated:
'I am strongly disposed to agree with the Calcutta Judges as to the Impolicy of allowing sales by mortgagees in the mofussll. The mass of mortgages consists of ancestral fields, made by ignorant cultivators to greedy and unscrupulous money-lenders. The great object or the money-lender is to get the land into his own hand and when he has succeeded he is the worst possible landlord, spending nothing on the improvement of his estate, and rack-renting the unfortunate ryot whose proprietary rights have passed from him, but who is willing to slave for the usurer rather than abandon the fields of his fathers. When we stand between two classes such as these, it is the borrower, and not the lender whom we should protect'.
(For similar remarks see --'Bhawanee v. Joykishen', (1847) S.D.A. 354 (Z 28), (cited in GOUR'S Law of Transfer in British India, 6th Edn. Vol. II, page 117).
17. The history of Section 69, Transfer of Property Act is as follows: In the Bill as introduced the powers of sale were, subject to certain provisions for the protection of the mortgagor, declared valid in all cases. The Select Committee to whom the Bill was first referred, disapproved of this provision and made the Bill declare (see Bill No. II, Section 39) that such powers were invalid, except where the mortgagee was the Government, or the property was situate in' the Presidency towns or Rangoon. The Law Commissioners of 1879 modified this section by allowing (see Bill No. IV s. 68) powers of sale in all cases where the principal money originally secured was five hundred rupees or upwards. Lastly, the Select Committee at first adopted -the section as modified by the Law Commissioners, but finally changed their minds (see their final Report, dated 24th January 1882, para 4), and having formed the opinion that there were certain parts of the country in which the power was liable to be abused, redrafted the section in its present shape. The remarks quoted from a Minute by Sir Charles Turner in paragraph 13 of the Statement (published in the Gazette of India, dated 23-8-1884) of Objects and Reasons to the Bill which afterwards became Act 3 of 1885, will be found to throw considerable light on the object and scope of this section. (See Macpherson's Law of Mortgage in British India, 7th Edn. (1885), page 672)
18. The Minute of Sir Charles Turner, former Chief Justice of this Court, which has been embodied in the Select Committee Report has been published in the Gazette of India, September 6, 1884 is:
'In England, it is usual to confer on a mortgagee, in case of default, a power to sell the mortgaged property without the intervention of a Court of Justice; and, where the instrument of mort-gage does not confer the power, but does not in express terms negative it, a mortgagee is empowered by statute to Sell on the expiry of twelve months after the date of default and of six months from the date on which notice is given of his intention to exercise the power 23 and 24 Vic. Clause 145. The statutory provision was by Act 28 of 1866, extended to mortgages in this country to which the English Law is applicable.
On the other hand, the simple mortgage in India did not authorize a sale without the order of a court, and by Regulation 17 of 1806 in the Bengal Presidency it had been enacted that a mortgage by conditional sale should not become foreclosed without the Service of a notice through the District Court, and on the expiry of a year of grace. Inferring the policy of the Legislature from this Regulation, the Sadr Diwani Adalat refused to give effect to an express power Of sale '1847 S. D. A. 354 (Z28)'. In the Bombay Presidency, Mr. Justice Melville expressed a doubt whether a private sale of property in the Mufassal, effected by a mortgagee under the power, would be valid: 8 Bom. H. C. B.142 (Z23).
On the other hand, I entertain the opinion and I believe acted on it before the Transfer of Property Act came into operation, that, in the absence of a prohibition of law, the owner of property was competent to confer on the mortgagee what powers he himself possessed, and that, if a mortgagor having, as owner, authority to sell, created a power of sale in a mortgagee, and the mortgagee duly exercised the power, the Courts were bound to recognise the validity of the sale.
In 'Bhanoomutty Chowdrain v. Premchand Neogee,' 15 Beng LR 28 (Z29), property in the mofussal had been mortgaged by an instrument in the English form containing a power of sale, and subsequently mortgaged to a third party by a conditional sale. The first mortgagee exercised his power of sale, and subsequent to the sale the second mortgagee took proceedings to foreclosure. It was held that the purchaser under the power was entitled to notice of foreclosure, and impliedly that a sale under a power might be valid.'
In this state of authorities Sir Charles Turnercontinues
'It fell to the Law Commission to offer for the acceptance of the Legislature a proposal to settle the law. It was felt that, in accordance with that principles of freedom of contract, an owner of property should be at liberty to confer on a mortgagee any of the powers which he could himself exercise, and that a borrower might more readily obtain accommodation, or obtain it on easier terms, if he could offer a security which would be speedily converted by the lender without the delay and the cost of an application to a Court of justice.
On the other hand, it was recognised that in this country the large majority of mortgage securities are created by persons who are poor and illiterate in favour of more sharp-witted creditors; and that, in an agricultural country, landed securities are subject to sudden and excessive variations in value which are rarely foreseen by borrowers. The Commission came to the conclusion, that while more wealthy borrowers in the country and all borrowers in the Presidency Towns might be left to deal with their property as they pleased, it was necessary in the present state of British India to create a legislative safeguard for the poorer classes of the country. They, therefore, proposed that the creation of a power of sale should be declared invalid except in mortgages where the principal money secured exceeded Rs. 500 or in mortgages to the Secretary of State or in mortgages of property in the Presidency Towns. In Committee, the section was recast instead of declaring that a power of sale conferred by the instrument of mortgage is invalid except in the cases specified, the section as it now stands, declares that in certain cases it is valid'.
19. On the occasion when the Hon'ble Mr. Stokes presented the final Report of the Select Committee on the Bill to define and amend the law relating to the Transfer of Property on the 26-1-1882, in the Council of the Governor-General, the only Speaker on that occassion on Section 69, Mr. Crosthwaite stated:
'As an example of the difficulties that had to be met, he would give to the Council the history of Section 69. It was the custom among English people, when money was lent on mortgage of land, to insert in the mortgage-deed a power of sale, authorizing the mortgagee, subject to certain conditions, to sell, without the intervention of a Court, the mortgaged property if the money was not paid when it became due.
But it had always been held by the most experienced Indian authorities that a power of this kind would work mischievously in rural India. Hence, in the first drafts of the Bill, such powers were declared to be invalid.
The Indian Law Commissioners, however, for reasons given on page 35 of their report, altered the drafts and declared the power to be valid in all cases in which the mortgaged property should be five hundred rupees or upwards.
Representing, as Mr. Crosthwaite thought he was bound to do, the interests of the ignorant landowners of Upper and Central India, who borrowed money without the aid of legal advice, and dealt with men far above them, as a rule, in intelligence and astuteness, he felt himself compelled to dissent from the opinion of the Law Commissioners, and the section was altered so as to enable the local Governments to declare the areas within which this power of sale should be valid. It appeared, however, that this alteration was not in accordance with the view of the gentlemen whose interests his Hon'ble friend Mr. Inglis so ably represented -- interests which must be respected by all who had the true prosperity of the country at heart. A fresh consideration of the matter became necessary, and the result the Committee arrived was embodied in the present Section 69 of the Bill, and which, if it satisfied Mr. Inglis and his friends, as he believed it did, was also quite sufficient to guard the interests of those whom he had in view'. (Extract from the Extra Supplement to the Gazette of India, February 7, 1883, page 10).
20. In introducing the Amendment Act of 1886 and which is the present Section 69, Sir Courtney Ilbertobserved thus:
'The object of the section was to set At rest, what had been previously a moot question, namely, whether, under the law of British India, a mortgagee could sell under an express power of sale without the intervention of the Courts. There can be no doubt that there was a custom among English people resident in the country, when money was lent on the mortgage of land, to insert in the mortgage-deed a power of sale, authorizing the mortgagee, subject to certain conditions, to sell, without the intervention of a Court, the mortgaged property, if the money was not paid when it became due. But it was felt that a power of this kind, it extended to the mofussil mortgages, might work mischievously, especially in rural India'.
21. The rights, duties and obligations of a mortgagee under Section 69 can be stated in the form of the following 'dos' and 'donts' which are not exhaustive but illustrative.
(1) It is incumbent on the mortgagees exercising his power of sale to act in good faith: --'Kennedy v. De Trafford', 1897 AC 180 (Z30). He must sell as a prudent owner, intending to sell his own property with reasonable conditions and if the state of the title justifies, to offer a marketable title. The power is to be regarded as a sacred thing, for it Is only a security: -- 'Jenkins v. Jones', (1860) 66 FR 43 (Z31); -- 'Chablldas Lallubhoy v. Mowji Dayal', 26 Bom 82 (Z32)
(2) The motives actuating a mortgagee in exercising his power of sale will not be considered by a Court: -- 'Colson v. Williams', (1889) 58 LJ Ch. 539 (Z33).
(3) He is not at liberty to look after his own interests alone and It Is not right or proper or legal for him, either fraudulently or wilfully or recklessly, to sacrifice the property of the mortgagor: (1897 AC 180 (Z30). The exercise of the power of sale shall not be oppressive or depreciatory: -- 'Dance v. Goldingham', (1873) 8 Ch. App 902 (Z34).
(4) He must not sell after tender made to him of the mortgage-money and his costs, charges and expenses, though the latter be under protest.
(5) A mortgagee may sell under special circumstances even of a stringent character, if not un-reasonably depreciatory: -- 'Falkner v. Equitable Reversionary Society', (1858) 62 ER 138 (Z35). But the conditions however must be such as an owner will use in the sale of his own property and should not be depreciatory: -- 'Mc Hugh v. Union Bank Of Canada', (1913) 108 LT 273 (Z36).
(6) He must hold the balance of the sale proceeds in trust for the mortgagor and if there are subsequent encumbrancers, in trust for them and ultimately for the mortgagors: -- 'Warner v. Jacob', (1882) 20 Ch D 220 (Z37); -- 'Abdul Bahman v. Noor Mahomed', 16 Bom 141 (Z38); -- 'Rajah Kishendutt Rajah v. Mumtaz All Khan', 5 Cal 198 (Z39).
(7) He must not buy himself or through his solicitors or agent, for such a sale would be vitiated even though there be no fraud or under value:-- 'National Bank of Australasia v. United Hand-in-Hand and Bond of Hope Co.', (1879) 4 AC 391 (Z40); --''Downes v. Grazebrook', (1817) 36 ER 77 (Z41); -- 'Henderson v. Astwood', 1894 AC 150 (Z42).
(8) He must hold the sale strictly adhering to the conditions which give him the right to exercise his power: -- 'Devey v. Durrant', (1857) 44 ER 830 (Z43).
(9) He must not sell by private treaty if the mortgage deed allows him to sell by public auction only (-- 'Brouard v. Dumaresque', (1841) 3 Moo PC 457 (Z44)').
(10) He is not bound to advertise the sale. But he must give reasonable publicity. And though the mortgagee is not a trustee for the mortgagor he is something more than a perfunctory agent and must at least see that in subserving his own interest he does not sacrifice the interest of those equally interested in the property. He must not do anything which would scare away the bidders: -- 'Chabildas v. Dayal Mowji', 31 Bom 566 (Z45).
(11) He must use every exertion to sell the property at the best price for he is chargeable with the full value of the mortgaged property sold, if for want of due care and diligence it has been sold at an undervalue: -- 'Orme v. Wright', (1839) 3 Jur 972 (46): (1879) 4 AC 391 (Z40)'.
(12) He must not sell before the mortgage money has become due: -- 'Jarup Teja & Co. v. Peerbhoy Adamji : AIR1921Bom421 (Z47).
(13) He must not sell without giving to the mortgagor a written notice for payment of the principal money and before default has been made for three months after service in payment.
(14) He must not sell unless some Interest amounting to at least Rs. 500 is in arrear and unpaid for three months after becoming due.
(15) His particulars of sale, even if inserted by his auctioneer, should give a correct description of the property.
(16) If he exercises the power bona fide without corruption or collusion with the purchaser, the court will not interfere even though the sale is very disadvantageous unless, indeed, the price is so low as in itself to be evidence of fraud: (1882) 20 Ch D 220 (Z37)'; -- 'Haddington Island Quarry Co. Ltd. v. Alden Wesley', 10 Mad LT 554 (Z48). (See Darashaw Vakil Commentaries on the Transfer of property Act (1938) for an exhaustive discussion of duties of mortgagees on sale pp, 632-641).
22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in* an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: -- 'Adams v. Scott', (1859) 7 WR 213 (Z49). I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Rashbehary Ghose Law of Mortgages, Vol II, Fourth Edn., page 784).
Then after the sale has taken place the mortgagor can come to court seeking damages for an unauthorised improper or irregular sale. As to measure of damages see -- 'Wolff v. Vanderzee', (1869) 20 LT 350 (Z50); (1879) 4 AC 391 (Z40)'. The mortgagee it is true is not a trustee of the power of sale. The power of sale given is for the benefit of the mortgagee and not for the benefit of the mortgagor. He has therefore a perfect right to hold the sale of the property in such manner as he thinks fit most conducive to his benefit. But the conditions of sale, however, must be such as the owner will use in the sale of his own property and should not be depreciatory. It is also necessary that the mortgagees must act bona fide in the conduct of the sale. Under Section 69 the title of the purchaser can be impeached only on any of the three grounds set out therein viz., (i) that no case had arisen to authorise the sale; (ii) that due notice was not given; (iii) that the power was otherwise improperly or irregularly exercised. But the mortgagor aggrieved by the sale can attack the sale on grounds other than these such as fraud, and collusion. The Court will set aside the sale which is not bona fide.
Where a mortgagee wrongfully exercised his power of sale, he loses his right to recover the mortgage money unless he can give back the mortgaged property on payment of the mortgage money. Any person damnified by an unauthorised or improper or irregular exercise of the power of sale will have his remedy in damages against the person exercising the power. The language of the section permits of a distinction between unauthorised exercise of the power of sale and an improper or irregular exercise of the power. The provision of Section 69(3) in favour of the purchaser cannot be availed of by him if he had notice of the improper exercise of the power prior to sale of the property. Therefore, it is only if the power is exercised by the mortgagee-bona fide without corruption or collusion, the Court will not Interfere with the sale. (See discussion on page 438 of E. Vinayak Row and Appu Row's Transfer of Property Act (1930) (Law Publishing Co., Mylapore) and Mulla's Transfer of Property Act, 3rd Edn. 1949, p. 478-479) and Rashbehary Ghose's Classic 'The Law of Mortgage in India (Tagore Law Lectures Fourth Edn. (1914) (Thacker Spink and Co., Calcutta) Vol. II, Pages 777 and foll.)'.
23. Finally, if a mortgagee exercises his power of sale out of Court the sale proceeds should be applied and dealt with by him as provided by paragraph (4). He is a trustee for the mortgagor in respect of the surplus sale proceeds in his hands and he is liable to pay interest though he may have retained the amount in his hands without investing it for interest. The liability to pay interest commences from the date of the sale.
24. Thus, it will be seen that the power of the, mortgagee to sell under Section 69 coming from England got extended to this country because it is absolutely necessary for promoting quick credit. It is unnecessary to point out that though quick credit is derided in extreme Left Wing political circles, it is undoubtedly the key-stone of modern industry and commerce. In fact it is on account of these provisions that mortgages became trusted securities and institutions and banks taking deposits have been freely investing in first mortgages. On the other hand, but for such a security if funds are to be kept locked up and have, to 'await the costly and cumbrous procedure, of sale through Court, the facilities for borrowing and expanding industries and commerce would not be available in the Presidency towns. In restricting this right only to Presidency Towns the legislature cased this upon a reasonable classification. I have already pointed out the extracts from various authoritative sources showing that this was not deliberately extended to the mofussil where the procedure might lend itself to abuse. The passage of time has not diminished but increased the usefulness of this provision and it has not rendered this classification otiose. There has been no time as the present when facilities for credit have got to be retained unimpaired if we are to progress from the rural economy into a highly industrial economy. This power conferred on the mortgagees stands hedged With various restrictions to prevent the abuse of the same. The aggrieved mortgagor can have recourse to courts both before the sale and after the sale. In certain respects his position is even better than that of a mortgagor in the mofussil.
Over and above all as pointed out by Venkatakrama Ayyar, J. (as he then was) in his judgment in 'W. P. No. 308 of 1953 D/- 24-4-1953 (Mad) (Z51)' the power of sale is the subject-matter of a freely negotiated contract between the mortgagor and the mortgagee. The State only provides a particular procedure in the case of mortgagees in Presidency Towns and when the freely negotiated contract is not kept up what happens is the mortgagees who are citizens of the Union of India like the mortgagors, only come to enforce their rights under the contract entered into between them. Article 14 can obviously have no application. There is no discrimination looked at from any point of view between the persons similarly situated or circumstanced and there is no denial of equal protection. Therefore the point taken under Article 14 of the Constitution fails.
25. Point (b) viz. that the power of the mortgagee to sell offends Article 19(1)(f) of the Constitution, has no substance. The ideology behind this right is that of individualism and private property. It means that a man is free to acquire any property including means of production either by inheritance, personal earnings or by other lawful means, to hold it as his own and dispose of It limited only by the exigencies of public welfare. Dispose of means (a) to determine the fate of, to exercise a power of control over, to fix the condition, employment etc. to direct or assign for a use; (b) to exercise finally one's power of control over, to pass over into the control of some one else by selling, to get rid of. Hold means to possess the property, to enjoy the benefits which are ordinarily attached to its ownership. In this case this power of the mortgagee to self does not in any way interfere with the freedom of the mortgagor to acquire property or dispose of property or hold property on the other hand, this is a case of the mortgagor, under the freedom guaranteed under Article 14, holding property and subject to a freely negotiated contract by him, acquiring funds thereon providing for the disposal of the property in the event of his not being able to discharge the mortgage in the manner agreed to by him. Therefore, Section 69, Transfer of Property Act does not offend Article 19(1)(f) of the Constitution.
26. Point (c): A private sale without the intervention of the Court under Section 69, Transfer of Property Act does not fall within the ambit of MadrasAct 5 of 1954 because that Act covers only (a) suits instituted in Court and (b) execution proceedings arising from decrees of Court. Therefore, this point taken fails.
27. In the result, this petition wholly devoid of merits is dismissed with costs.