Kerala High Court
The Branch Manager vs Sathyajith M S on 27 May, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
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WA No.587 of 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 27TH DAY OF MAY 2025 / 6TH JYAISHTA, 1947
WA NO. 587 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.13210
OF 2023 OF HIGH COURT OF KERALA
APPELLANT:
THE BRANCH MANAGER
STATE BANK OF INDIA, KOTTAYAM BRANCH,
COLLECTORATE BUILDING, COLLECTORATE, KOTTAYAM,
PIN - 686002
BY ADV DEEPA NARAYANAN
RESPONDENTS:
1 SATHYAJITH M S, AGED 41 YEARS
S/O. M.A. ACHUTHAN NAMBOODIRI, MADHURAMANA,
KUMARANALLUR P.O., KOTTAYAM DISTRICT, PIN -
686016
2 THE DISTRICT REGISTRAR, KOTTAYAM
OFFICE OF THE DISTRICT REGISTRAR, COLLECTORATE,
KOTTAYAM, PIN - 686002
3 THE SUB REGISTRAR, KOTTAYAM (ADDITIONAL)
OFFICE OF THE SUB REGISTRAR, KOTTAYAM
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WA No.587 of 2025
(ADDITIONAL), SREE GOKULAM SPRING TOWER,
KALATHILPADY ROAD, KANJIKUZHI, KOTTAYAM, PIN -
686004
4 P. B. MINI, AGED 48 YEARS
W/O. ANIL KUMAR, AGED 48 YEARS, RESIDING AT
SARADASIL VEETTIL, KUMARANALLUR P.O., KOTTAYAM
DISTRICT, PIN - 686016
OTHER PRESENT:
SR ADV LAKSHMI NARAYANAN,
ADV R.RANJANIE
GOVT. PLEADER SMT. B VINITHA R2 & R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
27.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WA No.587 of 2025
JUDGMENT
Dr.A.K.JAYASANKARAN NAMBIAR, J.
The 4th respondent in WP(C) No.13210 of 2023 is the appellant
before us, being aggrieved by the judgment dated 24.02.2025 of the
learned Single Judge in the writ petition.
2. The brief facts necessary for disposal of this writ
appeal are as follows:
The writ petition aforementioned was preferred by the 1 st
respondent herein, who had purchased a portion of a mortgaged property,
that was mortgaged by the 4th respondent to the appellant - bank. The 1 st
respondent, after purchasing the portion of the mortgaged property,
approached the 3rd respondent seeking a registration of the said sale. The
3rd respondent then issued Ext.P2 letter to the 4th respondent intimating
that the registration could not be carried out unless he produced a No
Objection Certificate from the appellant - bank clearly intimating that the
appellant - bank had no objection to the registration of the sale deed in
favour of the 4th respondent.
3. The learned Single Judge, who considered the matter, found
that in view of the judgments of the Supreme Court in Chhaganlal
Keshavlal Mehta v. Patel Narandas Haribhai [1982 (1) SCC 223] and
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Samarendra Nath Sinha and another v. Krishna Kumar Nag [AIR
(1967) Supreme Court 1440], it could not be said that the purchaser of
the whole or a part of the equity of redemption did not have the right to
redeem the mortgaged property since he derived his title from the
mortgagor and was, therefore, included in the term "Mortgagor" for the
purposes of the Transfer of Property Act. The learned Judge also found
that the statutory scheme under the Transfer of Property Act also
envisaged the possibility of a purchase of a part of the equity of
redemption. He, therefore, concluded that there was no justification for
the 3rd respondent in the appeal to insist on a No Objection Certificate
from the appellant - bank as a precondition for registering the document
of sale in relation to the portion of the mortgaged property at the instance
of the 1st respondent herein.
4. Although, it is the submission of the learned Senior
Counsel Sri.T.Sethumadhavan, appearing on behalf of the appellant
herein, that the directions issued by the learned Single Judge would
effectively frustrate the obligations of the parties in the mortgage
agreement entered into between the appellant and the 4 th respondent -
mortgagor, we are not persuaded to find that a breach of the term in the
said mortgage agreement would, in any manner, affect the rights of the 1 st
respondent, who is the purchaser of a portion of the mortgaged property.
Admittedly, there is no statutory legal prohibition in a person purchasing
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a portion of a property that is already the subject matter of a mortgage
between two other persons. As rightly found by the learned single judge,
the 3rd person - purchaser of a portion of the mortgaged property can only
take the purchased property subject to the charge already accruing in
respect of the property. In the instant case, all that was sought in the writ
petition by the 3rd person - purchaser was for a registration of the sale in
respect of the property. Since the registration of the sale was made
subject to the existing mortgage between the appellant - bank and the 4 th
respondent, we don't think the impugned judgment of the learned Single
Judge calls for any interference. The writ appeal, therefore, fails and is
accordingly, dismissed.
Before parting with this matter, we must express our concern at
a communication dated 09.04.2025 sent by the 3rd respondent to the 4th
respondent, which has been brought to our notice by the learned Senior
Counsel appearing for the 1st respondent. Through the said
communication, the 3rd respondent intimates the 4th respondent that on
account of the lapse of more than four months, owing to the pendency of
the writ petition before this Court, the 3 rd respondent cannot now register
the document notwithstanding the directions issued by the learned Single
Judge in the impugned judgment. While we are alarmed by the said stand
taken by the 3rd respondent, more so, when the legality of non registration
of the sale deed was admittedly under consideration of this Court in the
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writ petition, we deem it appropriate to direct the 3rd respondent to,
forthwith register the sale deed in question and at any rate, not later than
one week from the date of receipt of a certified copy of this judgment.
sd/-
Dr.A.K.JAYASANKARAN NAMBIAR
JUDGE
sd/-
P.M. MANOJ
JUDGE
das
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PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE HOME LOAN AGREEMENT
DATED 10-09-2020 EXECUTED BETWEEN THE
APPELLANT AND THE BORROWER
Annexure B A TRUE COPY OF THE TOP-UP HOME LOAN
AGREEMENT DATED 25-05-2023
