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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 151 of 155)
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seduced to illicit intercourse. As to this, it is sufficient to say that no other
inference is possible under the circumstances. When a man carries off a
young girl at night from her father's house the presumption is that he
did so with the intent indicated above. It would be open to him, if he
had admitted the kidnapping, to prove that he bad some other object, but
no other object is apparent on the face of the facts : '' this amounted to a misdirection of -the jury. The question 'of
intent was a pure question of fact, but the way in which it had been put



Misdirection of Jury (Concluded). PAGE

to the jury left them no option but to adopt the view taken by the Judge.

QUEEN-EMPRESS v. HUGHES, H A. 25-11 A.W.N, (1891) 170 ... 388
Misjoinder of causes of action,


Money decree,


(2) See RES JUDIOATA, 13 A, 53,

Money had and received,

Money, Suit for.




1, Qeneral.

(1) Mortgage Bond stipulating for recovery cf loan " from my moyeable and

immoveabte property" Such instrument not a mortgage Limitation
Act XV of 1877 (Limitation Act), sch. ii, arts, 66, 116 Attachment of debt
before judgment Civil Procedure Code, ss. 485, 486, 268 (a) Act XV of
1877, s. 15 Injunction or order staying a suit. A bond containing a
stipulation " that if the principal and interest is not paid up at the stipu-
lated period, then the obligee will be at liberty to recover the whole of bis
money together with the interest fixed by instituting a suit from my
moveable and immoveable property my own " milk " does not create a
mortgage upon any property of the obligor.

To suoh a bond art. 66 of soh. ii of the Limitation Act (XV of 1877) is applic-
able ; but where the instrument is registered, art. 116 may be applied to a
suit for failure to pay the bond debt.

An attachment before judgment under s, 485 read with s. 486 and
s. 268 (a) of the Civil Procedure Code, of a debt secured by a bond ; or an
injunction obtained by a third party and restraining the attaching creditor
from subsequently bringing the bond to sale in execution of his decree ;
is not an injunction or order staying the institution of a suit upon the
bond by the obligee within the meaning of s. 15 of the Limitation Act.

(1892) 5i7 47*

(2) Bee LIMITATION ACT, arts. 113, 116, 13 A. 200.

2. Conditional Sale.

(1) Act IV of 1882 (Transfer of Property Act), s. 135 Actionable claim Transfer
of claim ior an amount less than its value Suit by transferee to enforce
claim Defendant not entitled to plead that terms of transfer were uncon-
scionable. A mortgagee by conditional sale having obtained an order for
foreclosure under Regulation XVII of 1806, his heirs, who were out of
possession, executed a deed of assignment to a third person, transferring to
him the rights acquired by the mortgagee under that order, At the time
of the execution of the deed no steps had been taken by the mortgagee or
his heirs to bring a suit for declaration of their title and for possession of
the property. A suit for that purpose was brought by the assignee, the
defendants being the conditional vendors and also the assignors under the
deed above mentioned, The latter made no defence, but admitted the



Mortgage 2. Conditional Sale (Concluded), PAGE

justice of the claim, and a decree was passed in favour of. the plaintiff
against them as well as . against the other defendants.

Held, that the answering defendants, the conditional vendors, could not
taka advantage of the terms of the assignment for the purpose of defeating
the claim, on the ground that the assignment was an unconscionable
bargain, so unfair. that the Court should not enforce it. If a person who
has an actionable claim against another chooses to sell it cheap, that is no
reason why that other is to stand cleared and discharged of his liability to
the assignor.

Held, also that the answering defendants were entitled to the benefit con-
tained in the first paragraph of s> 135 of the Transfer of Property Act (IV
of 1883), and would be entitled to take the bargain off the plaintiff's hands
by paying to him the price and incidental expenses of the sale with inter-
est on that price from the day that the plaintiff paid it to the date of its
repayment to him. ItAKIH-UN-NISSA v. DEO NABAIN, 13 A. 102 ... 64

(2) Bee BAI-BIL-WAFA, 14 A. 195.

(3) Bee PRE-EMPTION, 14 A. 405.
3, Construction of Mortgages,


4. Equitable Mortgage,

Bee TRANSFER OF PROPERTY ACT, 8. 59. 14 A. 238.

5. Priority.

(1) Mortgage Rights of prior and subsequent incumbrances inter se Rights of
mortgagee purchasing equity of redemption Right of sale of mortgaged pro-
perty Suit to bring mortgaged property to sale, who necessary parties to
''Property,'' meaning 0} the term in dct IV of 1882 Act [V of 1882
(Transfer of Property Act\, ss. 3 and 6, chap. IV passim Act lof 1868
(General Clauses Act), ss, 2, els. (5) and (6). A and B jointly mortgaged
certain immoveable property to X by a simple mortgage-deed on the 10th
September, 1882. They again mortgaged the same property to X on the
23rd February, 1884. On the 6th August, 1885, A mortgaged a portion of
the said property to Y. On the 12th August 1885, B mortgaged a portion
of the same property to X. On the 21st August, 1885, A mortgaged a por-
tion of the same property to Z. On the 20th September, 1886, A and B
sold to X the property mortgaged to him and with the proceeds of that
sale X's three mortgages were paid off. On the 8th January, 1887, Y used
A.B. and X for oanoelment of the deed of sale of the 20th September,
1886, and for sale r.'f the property mortgaged to him under his deed
of the 6th August, 1835. Y did not make Z a party to this suit. He did
not ask for redempoion of X's mortgages nor for foreclosure of Z's mort-

Upon the facts it was held by EDGE, O.J., STRAIGHT, TYRRELL and
KNOX, JJ. (MAHMOOD, J. dissentiente):

(1) That X not having exhibitd any intention of foregoing altogether hia
rights in respect of the mortgages of the 10th September, 1682, and the
23rd February, 1884, was entitled to keep those securities alive and to
use them as a shield against the claim of Y, the subsequent mortgagee,
to the extent of the amount which was due under them on the 20th
September, 1886.

(2) That Y as subsequent mortgagee could not bring to sale under his mort-
gage-deed the property mortgaged to him without first redeeming X's two
prior mortgages.

(3) That Z's mortgage of the 21st August, 18S5 having been registered, Y
must be taken to have had notice of it, and, having bad notice thereof,
was bound to make Z a party to the suit for sale under his (Y's) mort-

(4) That the term "property as used in Chapter IV of Act of 1882" means an
actual physical object and does not include mere rights relating physi-
cal object.



Mortgage 5, Priority (Concluded). PAGE

Held, by the Full Bench.
That the Transfer of Property Act (IV of 1882), so far as the question of

reliefs and procedure is concerned, applies to mortgages executed before

the coming into force of the Act.

MAHMOOD, J., contra :

Inasmuch as a mortgagee cannot bring the mortgaged property to sale with-
out the intervention of a Court, a private purchase by the mortgagee of
the rights remaining to the mortgagor in such property, though it may be
valid as against the mortgagor, can have no effect in defeating the rights
of puisne and mesne incumbranoerp. Moreover, where a second mortgage
to a third party intervenes between the mortgage to and the purchase by
the prior mortgagee of the rights of the mortgagor, such intermediate
mortgage prevents the merger of the rights of the prior mortgagee as such
with those which he might acquire by his purchase.

The right of sale is an essential incident of a simple mortgage, and inheres
as well in puisne and mesne as in prior mortgagees subject to the rights
of the prior mortgagees. The puisne or mesne mortgagee is not bound
by the terms of the prior mortgage, or mortgagee, but is entitled to bring
the property mortgaged to sale subject to such prior mortgage or mort-

The provisions of s. 85 of Act IV of 1882 arc not absolutely imperative, and
though thereunder a subsequent incumbrancer ought to be made a party
to a suit by a prior mortgagee on bis mortgage, the non-joinder of such
subsequent incumbrancer is not a fatal defect in the suit. Registration
of a subsequent mortgage is not necessarily any notice to a prior mort-
gagee of the existence of such subsequent mortgage ; it being no part of a
mortgagee's duly to be on the watch for inoumbrances subsequent to his

The terms " property " throughout Act IV of 1882 is used in its most
generic sense and will include the right known as an " equity of redemp-
tion." MATA DIN KASODHAN v, KAZIH HUSUN, 13 A. 432 (F.B.) ... 276

(2) Bee HINDU LAW (ALIENATION), 15 A. 339.


(4) Bee PARTIES TO SUITS, 13 A. 315.

(5) See REGISTRATION ACT; 8. 50, 13 A, 288.
6. Redemption.

(1) Cowl-let Mortgagee Redemption Decre& for redemption conditional on

payment of a certain sum Appeal by mortgagor Court fee payable on
memorandum of o,ppeal~Act VH of 1870 (Court Fees Att^ s. 7, ch. ix.
Where a mortgagor sues for redemption on the allegations that the mort-
gage debt has bsen s satisfied, and a decree for redemption is passed on
payment of a certain amount and the mortgagor appeals against the
amount he is ordered to pay, the court-lee payable on the memorandum
of appeal must, under s. 7, cl. ix of Act VII of 1870, (Court Fees Act), be
computed acoordicg to the principal money expressed to be secured by the
instrument of mortgage, and not according to the balance which the
mortgagor alleges to be due.

Semble, If the decree had allowed redemption on payment of a certain sum,
and the defendant mortgagee was appealing on the ground that the
amount due w,ts greater than that sum, the oourt-fee should be calculated
on the difference between the sum mentioned in the decree and the amount
alleged by the appellant to be due. PlRBHU NARAIN SINGH v. SlTA
RAM, 13 A. 94 = 10 A.W.N. (1890) 231 ... 59

(2) Mortgace Joint Mortgage Redejiiption of the whole by one co-mortgagor

Rights o! redeeming co-mortgogor as agaiast the other* Limitation Act
XV of 1877 (Limitation Abt), sch. II, art. 148. Where one of several co-
mortgagors redeems the whole mortgage ha thereby puts himself into the
position of the mortgagee as regards that portion of the mortgaged property
which represents the interests of the other oo-mortgagora, and the period of
limitation applicable to a suit for redemption brought by the other co-mort-
gagors is that provided for by art. 148 of sob. II of the Limitation Act
(XV of 1877). Such period begins to run from the date when the original



Mortgage 6. Redemption (Concluded), PAGE

mortgage was redeemable and not from the date of its redemption by the
aforesaid oo mortgagor. ASHFAQ AHMAD v. WAZIR ALI, 14 A, 1 {P.B.)
= 11 A.W.N. (1891) 211 = 11 A. 423 ... 373
(3) See PARTIES TO SUITS, 13 A. 315.
7. Sale of Mortgaged Property.

(1) Payment of Government revenue by mortgagees in posssssion .to save the proptrty
Payment of morlgage-monsy into Court by mortgagors and relinquish-
ment of possession by mortgagees Subsequent suit by mortgagees ti recover
the Government revenue paid by thsm by sale of the mortgaged property
Act IV uf 1882 (Transfer of Property Act), s. 83. The plaintiffs were mort-
gagees in possession of certain shares in a village under a mortgage which,
as to the principal amount advanced, was a simple mortgage, as to the
interest a usufructuary mortgage. The mortgagees, to Rave the property
from sale, paid up certain arrears of Government revenue. Subsequently,
the defendant, who was the representative of the mortgagors, under s. 83 of
the Transfer of Property Aot (IV of 1882), paid the original sum due under
the mortgage into Court. The mortgagees withdrew the money so paid
in and deposited the mortgage-deed in Court. The mortgagees then, after
relinquishing possession of the mortgaged property, sued to recover the
money which they had paid as Government revenue by sale of the mortga-
ged property.

Held that though the mortgagees might originally have treated the amount
paid by them as Government revenue as part of the mortgage-money,
they did not by such payment obtain a lien independently of their position
as mortgagees, and when once they bad abandoned their lien on the
mortgaged property by accepting the money paid into Court by the mort-
gagors and by relinquishing possession o* the mortgaged property, they
could not afterwards revive it ; and their suit, which was for realization
of the Government revenue paid by them, by sale of the mortgaged pro-
perty, must fail.

Stmble, a mortgagee, who had given up his lien under circumstances similar
to those above described, might bring a simple money suit to recover
money paid by him to save the property from sale in execution for arrears
of Government revenue. ANANDI RAM v. DUR NAJAF ALI BEGUM, 13
A. 195 = 10 A W.N. (1890) '228 ... 122

2) Prior and subsequent mortgages Bights of persons advancing monsy to pay
off a prior mortgage Suit to sell mortgaged property under mortgage
l\rm of decree to be given. Where in a suit to bring certain immoveable
property to sale under a mortgage it was found that the predecessor in
interest of one o! the defendants had advanced money upon a mortgage of
the same immoveable property in order to save a portion thereof from sale
under two prior mortgages : held that such defendant was entitled to the
benefit of the payment so made, and that the proper decree in the
suit should be that the plaintiff could only bring that portion of the pro-
perty in suit to sale on payment to the said defendant of the money
advanced as aforesaid, with interest from the date of payment to the date
of the receipt of the final decree by the Court of first instance together
with proportionate costs ; such payment to be made within 90 days from
the ascertainment of such amount and the reoeiot of tho final decree by
the Court of first instance ; otherwise the plaintiff to be 'absolutely debar-
red from all right to redeem that particular portion of the property mort-
gaged. TULSA v. KHUB CHAND, 13 A. 531 = 11 A.W.N. (1891) 193 ... 368
(3) Suit for sale by mcrlqagee against aucticn-piirchaser , mortgagee having
accepted part of the proceeds of the former sale Ac'. VIII of 1859, s, 271
Es'oppil. On the iOth of February, 1872, one 8. R. mortgaged to the
plaintiff an undefined one biswa share out of three biswas owned by him.
On the 20th of March, 1877, J. P. and G. P. brought to sale in execution
of money decrees against 8, R. two out of those three biewas, which two
biswas were purchased by the defendant. The sale was confirmed on the
23rd of April 1877. Out of the proceeds of that sale, Rs. 1,464-14-9 were
appropriated by tbe plaintiff in part satisfaction of his mortgage. On the
16th of April 1877, the plaintiff sued the auction-purchaser for sale of
one biswa in satisfaction of his mortgage. Held that even if it could be
shown (which it could not) that tbe particular biswa mortgaged to tbe
plaintiff was one of those which had passed into the defendant's pos-


A VII 130


Mortgage 7. Sale of Mortgaged Property (Concluded}, PAGE

session, the plaintiff was estopped by his previous conduct from suing to
bring it to sale under his mortgage. JHINKA v, BALDEO SABAI, 14 A,
509 = 12 A.W.N. (1892)98 ... 694

(4) Suit for sale on a mortgage Rights of mortgagee inresptct of non-hypothe-
cated property of tht mortgagor Res-judioata Act IV of 1882, ss. 68, 88,
89 and 90 Civil Procedure Code, sch. IV, forms Nos. 109 and 128.
Where there is nothing to show a contrary intention of the parties, every
mortgage carries with it a personal liability to pay the money advanced ;
but a mortgagee must sue for his remedy against the property first. In
so doing it is immaterial whether or not he prays in his plaint for relief
over against non-hypothecated property. Unless in exceptional oases he can
obtain such relief only under the provisions of s. 90 of the Transfer of Pro-
perty Act, and if such relief is refused the refusal will not bar a subsequent
application under s. 90.

Observations on the meaning and application of ss. 88, 89 and 90 of the
Transfer of Property Act. Explanation of the term " legally recoverable "
in s. 90. MUSAHEB ZAMAN KHAN V. INAYAT-UL LAH, 14 A. 513 = 12 A.
W.N. (1882) 80 ... 698


(6) Bee MORTGAGE (PRIORITY), 13 A. 433 (F.B.).

8, Simple Mortgage,

Mortgage Hypothecation Charge Lien Transfer of interest in immoveable
property Construction of document Words " Arh" " Mustaghraq "
Power of sale in default Bona fide purchaser for value without notice
Rights of purchaser at sale in execution of money decree Act IV of 1882
(Transftr of Property Act}, ss 40. 58 (b), 69, 100. In January 1883 a
decree was obtained upon a bond executed in October, 1875, whereby cer-
tain immoveable property was made security for a loan, the transaction
being described not by tho word " rehan " or mortgage, but by the words
"ark" and " mustaghraq." The instrument contained no express
covenant for sale of the property in default of payment, but it contained
a covenant prohibiting alienation until payment, and a stipulation that,
in the event of the property specified being destroyed or proving insuffi-
cient to satisfy the debt, the obligee might realize the amount from the
obligor's person and other property. The decree directed the sale of the
property as in the terms of an ordinary decree for the sale of mortgaged
property. In 1885, before any steps had been taken in execution of the
decree, the same property was sold in execution of a simple money decree
against the obligor, and the purchaser obtained possession. It was found
as a fact that at. the time of the sale the bond of October, 1875, and the
decree thereon of January, 1883, were not notified, but through no fault
of the obligee decree-holder, and that the purchaser was a oona fide
transferee for value without notice of the bond and decree.

Held that the words " arh " and " mustaghraq " used in the bond implied a
power of sale in default and denoted a mortgage without possession ; that
the transaction, though entered into prior to tbe passing of the Transfer of
Property Act (IV of 1882), must be regarded as amounting to a simple
mortgage as defined in s. 58 (b) of that Act, and not as merely creating a
charge as defined in s. 100 ; and that consequently the rights of tho obligee
must prevail over those of the subsequent bom fide purchaser for value
without notice of the bond and decree thereon.

Bel i also by Mahmood, J., that the title of the judgment-debtor at the time
of the sale in 1885 in execution of the simple money decree was subject
to the mortgage decree of January, 1883, and the purchaser at that sale
could acquire no higher title thin the judgment-debtor possessed, and
was equally bound by the terms of the decree of January 1883, in respect
of tbe property which he had purchased, and could not prevent the pro-
perty being sold under that decree except by paying up the decretal

Ptr Mahmood, J. The power of sale mentioned in s. 53 (b) of the Transfer of
Property Act is not a power in the mortgagee' to bring the mortgaged
property to sale independently of a Court.

The nature of simple mortgage, hypothecation, charge and lien discussed
KISHEN LALv. GANGA RAM, 13 A. 28 = 10 A.W.N. (1890)216 ... 19



Mortgage Bond, PAGE

Bee INTEREST, 13 A. 330,
Mortgage Lien,


Muafi Tenure.


Non-joinder of Parties.

(1) Bee PARTIES TO SUITS, 14 A. 524.

(2) Bee RES JUDICATA, 13 A/53.



Oaths Act, 1873.

(1) Ss. 10 and II Referee's depositions inadequate for decision of que$tion

referred Appeal after death of referet Practice. Where a cause bad
been decided under the provisions of ss, 10 and 11 of the Oaths Act (X
of 1873) with reference to the depositions of a person appointed by
agreement of the parties as referee, and where, after the death of the
referee, on an appeal being preferred against the decree so based upon
those depositions, it was found that the said depositions did not fully
cover the questions in issue between the parties.

Held, that the case should be remanded to the lower Court for disposal ac-
cording to the usual procedure. MAHABIR PRASAD MlSR V. MAHADEO
DATMISR, 13 A. 386 = 11 A.W.N. (1891), 143 ... 246

(2) S. 11 See CIV. PRO. CODE, S. 11, 14 A. 141,


(1) See APPEAL, 15 A. 186.

(2) Bee LIMITATION, 15 A. 123.

(3) See REMAND, 15 A. 119.

(4) Bee SECOND APPEAL, 13 A. 530.
Occupancy Tenure,

( See LANDLORD AND TENANT, 13 A. 403 ; 13 A. 571 ; 14 A. 223 ; 14 A. 362 j
15 A. 219 ; 15 A. 399.

Opium Act.

8. 9 See BIAS, 15 A". 192.

See APPEAL, 15 A. 359.

See SUCCESSION, 13 A. 573,

Pardanashin Woman.

Conditions necessary to the valid execution of a document by. Where a deed exe-
cuted by a pardahnashin woman is ought to be set aside, it is for the party
wishing to uphold the deed to show affirmatively that the transaction
intended to be carried out by the deed was a reasonable one, that the exe-
cutant was fully cognizant of the meaning and legal and practical effect
thereof and that she executed the same with her full and free consent,
that is to say, that she bad independent advice on the subject and was
not otherwise, as, e.g., by reason of bodily or mental infirmity, or by
reason of fraud or coercion practised upon her, incapable of giving a
rational consent to the transaction.

One Miriam Bibi a pardanashin lady of some 70 years of age. and more or
less illiterate, executed on the llth September 1888, a deed which pur-
ported to divest her immediately of all her property in favour of her son



Pardanashin Woman (Concluded). PAGE

Murtaza, Husen, who was dumb and imbecile, her daughter Sakina, who
was named in the deed as guardian of murtaza Husen, and that daughter's
son, Muhammad Yakub. Muhammad Yakub was betrothed to a daughter
of one Fakir Husen and one of Sakina's daughters was married to one
Shakurul Husen. Those two persons, via., Fakir Husen and Shakurul Husen
were mainly instrumental in procuring the execution of the deed in question.
The deed was drafted in very artificial language, and it was net shown that
the executant ever understood its contents or effect. The executant was
moreover at the time of execution in ill health and great mental distress ;
owing to the death of her son, Muhammad Husen, which had happened
some months previously. The deed was also executed in the absence of
the person who was at that time the executant's chief adviser and the
manager of her property. Lastly, it appeared that as soon as the execu-
tant came to know what the true nature of the deed was and that proceed-
ings had been initiated in the Revenue Department foe mutation of
names, she took immediate measures to show her dissent from the provi-
sions of the deed and her disapproval of what had been done thereunder.
Held that under the circumstances above set forth the deed in question
could not be considered as having been executed under the conditions
necessary in such cases and must be set aside. MABIAM BlBI v. SAKINA,
14 A. 8 = 11 A.W.N. (1891), 213 ... 377


(1) See GRIM, PRO. CODE, 8. 337, 14 A. 336,

(2) Bee JOINT TRIAL OP ACCUSED, 14 A. 502.
Parties to suits,

(1) Mortgage Prior and puisne incumbrancsrsPuisnz incumbrancer not made

a party to suit upon prior incumbrance His right to redeem not thereby

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 151 of 155)