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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 44 of 155)
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satisfied. The amount of that prior charge had been ascertained to be
Eg. 1,296-6-7, and those learned Judges decreed that the defendant could
only bring the property or any part of it to sale on first paying to the
plaintiff that sum.

In Gangadhara v. Sivarama (1) the plaintiff in February 1878, in a
suit against Sivarama Mudali, obtained a decree on a [446] comnro-
mise providing for payment of the judgment-debt and declaring certain
lands, five plots, hypothecated as security for the payment in accordance
with the terms arranged. That decree was registered. Of those lands
plots Nos. 1, 2 and 3 had been mortgaged in 1866 by Sivarama Mudali to
Pushpavanalingam Mudali, who, in October 1877, obtained a decree for
the enforcement of his mortgage. On the 23rd of May 1878 Sivarama
Mudali borrowed Es. 3,500 from the defendants Nos. 2, 3 and 4, and
mortgaged to them the five plots of land. Of that sum Es. 1,900 were
paid to Pushpavanalingam Mudali, who in consideration of that pay-
ment, released his lien on plots Nos. 1, 2 and 3. The plaintiff subsequent-
ly attached plots Nos. 1, 2 and 3 under his decree of February 1871 ; but
on the objections filed by the defendants Nos. 2, 3 and 4, the properties
were released from attachment, and thereupon the plaintiff brought his
suit to have it declared that plots Nos. 1, 2 and 3 were liable to be sold
in execution of his decree of February 1878, free from the incumbrance
held by the defendants Nos. 2, 3 and 4. Turner, C. J., and Muttusami
Ayyar, J., in 1884, holding that the plaintiff was entitled to sell plots
Nos. 1, 2 and 3 under his decree of February 1878, made a declaration
that such sale must be made subject to the lien of the defendants Nos. 2,
3 and 4 for the Es. 1,900 paid to Pushpavanalingam Mudali.

In Sirbadh Bai v. Raghunath Prasad (2) Jurawan Singh and Daulat
Kuarin 1866 mortgaged by an usufructuary mortgage three bighas of land
to one Lachman Eai, and in 1874 mortgaged their 4-annas share, which
included the 4 three bighas, to the plaintiff. In 1878 the mortgagors for
the purpose of paying off the mortgage of 1866, executed in favour of the
defendants a deed of sale of the three bigbas of land. Part of the
purchase-money was applied to paying off the mortgage of 1866. The
plaintiff in November 1882 brought his suit to bring the 4-annas share
to sale by enforcement of his lien under his mortgage of 1874. That
case came before a Division Bench of this Court in March 1885,
when Oldfield, J., held that the mortgage of 1866 had not been extin-
guished, and that it afforded [447] a defence to the plaintiff's suit to bring
the three bighas to sale. Mahmood, J., held that the defendants were
entitled to the benefits of the mortgage of 1866, which they had paid off.
He was, however, of opinion that the plaintiff was entitled to bring
the three bighas to sale, but that such sale would be subject to the
mortgage of 1866, to the benefit of which the defendants were entitled.
The case went on appeal before the Full Bench of this Court in January
1866| (3) (Raghunath Prasad v. Jurawan Rai) at which time Mahmood, J.,
was not a member of the Court. The three bighas had been referred to
in the proceedings in the Courts below as " land No. 111." The Munsif
had decreed that " land No. Ill be exempted from the hypothecation
lien." That decree was varied by the Full Bench in June 1886, by
adding the words " in that property the interest of the plaintiff as second



1891
JULY 25.

FULL
BENCH.

ISA 432



(1) 8 M. 246.



(2) 7 A. 568.
285



(3) 3 A. 105.



13 All. 448



INDIAN DECISIONS, NEW SERIES



[Yol-



1891

JULY 25.

FULL
BENCH.

13 A. 432

(F.B.).



mortgagee only to be sold." That form of variation was proposed by
Petheram, C.J., and was agreed to by Straight, Oldfield, Brodhurst and
Tyrrell, JJ.

It is to be observed that the mortgage of 1866 was an usufructuary
mortgage with possession, which, if it inured with all its benefits to the
defendants, was one which the plaintiff when he brought his suit was not
entitled to redeem. Under such circumstances it would be difficult to see
what interest, if any, in the three bighas the plaintiff could sell beyond
the right to possession on the determination of the mortgage of 1866 by
the principal and interest being satisfied by the usufruct.

The effect of the decree of the Full Bench was to deprive the plaintiff
of a lien on the three bighas if he ever bad one. No authorities were
referred to in any of the judgments in the Full Bench. It does not appear
whether the fact that the mortgage of 1866 was an usufructuary mortgage
with possession distinguished, in the opinion of the Full Bench, that case
from one in which the prior incumbrance was a simple mortgage ripe for
redemption. Indeed it seems to me very doubtful whether the case was
argued at all before the Full Bench, it having been assumed that the
difference [448] of opinion bVjween Oldfiled, J., and Mahmood, J., had
arisen from some misapprehension as to the facts of the case.

In the case of Janki Prasad v. Sri Matra Mautangui DebiaCi.) the facts
so far as they are material, were that in 1872 Ungan and others by deed
mortgaged certain property to the plaintiff. That deed was not registered,
nor did it require to be registered under the Eegistration Act applicable
to it. The mortgagors in 1880 executed another deed of mortgage in res-
pect of the same property in favour of one Sundar Lai. That deed was
registered. The mortgagees executed in 1881 another deed of mortgage in
favour of Sundar Lai over the same property. That deed was not registered
nor did it require registration. In a suit on the deed of 1881 Sundar Lai got
a decree, and under that decr*ee Sundar Lai had the property attached
and sold. It was purchased by the defendant Janki Das, who subsequent-
ly paid off the registered mortgage of 1880, and received the mortgage-
daed of that date. The plaintiff subsequently brought his suit to recover
by sale of the property the money due to him under his mortgage of 1872,
and made Janki Das and the mortgagors defendants. The suit came in
appeal before Oldfield and Mabmood, JJ., in March 1885. In the opinion
of Oldfiled, J., the question turned on the priority of the registered over
the unregistered mortgage, and holding that there was such priority, he
held that the suit should be dismissed. Mabmood, J., also held that the
registered mortgage took priority over the unregistered mortgage, and that
Janki Das having paid off the registered mortgage, was entitled to the
benefits of it ; but he held that the plaintiff was entitled to have the pro-
perty sold under his unregistered mortgage of 1872 subject to the rights
of priority which Janki Das had acquired by reason of his having paid off
the registered mortgage of 1880.

In Dullabhdas Devchand v. Lakshmandas Samp Chand (2) in which
the plaintiff sued to recover possession of land, the facts were as follows :
In 1870 Sambhu and his two sons mortgaged the lands in question to Har
Lai without possession. In 1871 the [449] mortgagors mortgaged
the lands without possession to the defendant. On the lObh of June 1873
the mortgagors mortgaged the lands again to Har Lai. That mortgage
.purported to give Har Lai possession, and to have been given as security



(1) 7 A. 577.



(2) 10 B, 86.



286



YII]



MATA DIN KASODHAN V. KAZIM HUSAIN



13 All. 450



for the principal and interest due under the mortgage of 1870, the interest
then due being treated as principal, and for interest. On the 12th of June
1873, the mortgagors again mortgaged the lands to the defendant. The
mortgage-deed purported to give possession to the defendant. The consi-
deration for that mortgage of the 12th June 1873 was the principal and
interest due under the mortgage of 1871 the interest then due being con-
verted into principal. In 1877 Har Lai obtained a decree for sale upon
his mortgage of the 10th of June 1873. The defendant was not a party
to that decree. At the sale held under that decree the plaintiff purchased,
and, having in his attempt to obtain possession of the lands been obstruct-
ed by the defendant, contended that he was entitled to possession as he
was not a party to Har Lai's decree, and offered to pay the plain-
tiff the amount of his purchase- money or to vacate the lands on satisfac-
tion of his own mortgage lien. In August 1885 Sargent, C.J., and
Birdwood, J., being of opinion that there was nothing to show an intention
to forego the benefit of the security created by the mortgage-deed of 1870,
held that the decree of 1877 conferred an absolute title on the purchaser
(the plaintiff) at the auction sale, free from all incumbrances created by
the mortgagors subsequent to the mortgage of 1870 ; but that the defend-
and not having been made a party to Har Lai's suit had not lost his right
of redemption, which was still open ; and although the plaintiff's suit was
not one for foreclosure, they decreed that '' the defendant to deliver
possession to the plaintiff, but that he be at liberty to redeem by payment
to the plaintiff, within six months, of the amount which would be due on
the mortgage of she 15ih July 1870, if the same had remained unaffected
by the mortgage of 1873, or, in default, should remain for ever foreclosed.
The defendant to pay plaintiff his costs throughout."

That is a most important decision, as it not only indicates, in the
opinion of those learned Judges, who should have been parties [450] to
the suit on the mortgages, buc what the decree should have been if the
proper parties had been parties to that suit;

The case of Mohan Manor v. Toku Uka (l) which was decided by
Sargent, C.J., and Birdwood, J., is an authority that a prior mortgagee
who purchased the mortgage property at a sale in execution of a decree
obtained by him on the 26th of January 1876, on his mortgage, to which
decree the second mortgagee was not a party, did not lose the benefit of
the security created by the first mortgage, and could use it as weapon of
attack in his suit; against the second mortgagee for possession, who, in that
case, was allowed 'six months within which to redeem on payment of
what was due on the first mortgage. The Court directed that the ac-
count of the mortgage-debt should be taken on the basis of what was due
on or by the decree of the 26th January 1876.

In Zalim Gir v. Bam Charan Singh (2) Bhairo Singh, in 1871,
executed a mortgage-deed in favour of Panna Lai in consideration of
an advance, and as security for such advance hypothecated his ze-
mindari property. In 1872 Bhairo Singh executed a similar deed
in favour of Panna Lai, the consideration being a further advance. In
1874 Bhairo Singh mortgaged 117 bighas 7 biswas and 10 dburs of sir
and cultivator/ land belonging to his zemindari to Zalim Gir, the defen-
dant. In 1877, Bhairo Singh made a conditional sale of his zemiudari to
Earn Charan Singh, the plaintiff, the consideration being Rs. 4,700,
which was required for, and applied to the paying off, of the mortgages



1891

JULY 25,

FULL
BENCH.

13 A. 2
(F.B.).



(1) 10 B. 224.



(3) 10 A, 629.



287



13 All. 451 INDIAN DECISIONS, NEW SERIES [Yol.

1891 of 1871 and 1872, held by Panna Lai. In 1887, Bhairo Singh mads
JULY 25. another mortgage to Zalim Gir of the property mortgaged by the bond of
1874. Zalim Gir bavins brought a suit against Bhairo Singh upon the
FULL bonds of 1874 and 1878, obtained on the 9i;h of November 1881, a
BENCH, decree for EB. 2,064-14. Zalim Gir proceeded to execute that decree
on the property mortgaged to him, and the sale was advertised for the
13 A. 432 20th of November 1883. Earn Gharan Singh having taken proceedings
(F.B.). under the deed of 1877 the sale to him was, on the 19th March, 1883, fore-
closed. On the 19fch of November 1883, Earn Charan Singh brought his
suit [451] against Zalim Gir to have it declared that Zalim Gir was not
entitled to bring the property to sale. Straight and Tyrrell, JJ., in July
% 1888, being of opinion that Earn Charan Singh was entitled to pay the
securities of 1871 and 1872 in aid as prior inoumbrances, made a decree
declaring that Zalim Gir should only be permitted to bring the property
to sale under his decree in respect of his mortgage of 1874, when he had
satisfied the mortgage bonds of 1871 and 1872, then in the possession
of Earn Charan Singh.

In Umes Chunder Sircar v. Zahur Fatima (1) the facts and transac-
tions were somewhat complicated, but so far as is material for the con-
sideration of the question before us they appear to have been shortly as
follows:

The plaintiff was a puisne mortgagee of 12 annas of mauza Sindilia
in the Gaya district. He had also obtained transfers of other mortgages
upon the same estate, and had at judicial sales bought fractional parts
of it. The defendants had also acquired mortgage interests in the
mauza some prior and some susbequent to the plaintiff's. They
were sued by the plaintiff who sought to redeem the prior incumbrancos so
as to make his own charges the first on the property. In the alternative
the plaintiff claimed to have a direction made for the sale of the property,
and an order that out of the proceeds the mortgage-money due to all the
parties should be paid according to their several priorities. The first
'Court decided the plaintiff was entitled to redeem; but, being of opinion
that the usual practice was to decree a sale when the mortgagor did not
appear to pay off incumbrances, the natt proceeds of the sale being ordered
to be divided among the mortgagees according to their priority, instead of
giving a decree for redemption, made a decree for sale on the plaintiff's
alternative prayer for relief, and gave certain directions to be observed
in the taking of the accounts. The first Court by its decree of 17hh of
September 1883, directed, so far as is material for our consideration here,
a sale of the entire estate, free from all incumbrances, the upset price to be
fixed at a sum equal to the aggregate amounts of the purchase-money paid
[452] by the defendants Fazl-ul-Bari and Zahur Eatima, being the value
of their proprietary right and mongage liens, but without interest, they
having been in possession of their shares, plus costs of suit and costs of
sale, both parties to have liberty to buy at the sale, of which the proceeds
were to be applied in discharge of the incumbrances found by the accounts
in order of their priority, and any surplus to go to the propietors in pro-
portion of their shares. On appeal, Prinsep and Grant, JJ., dismissed
the suit as to certain portions of the property (17 dhurs and a 2-annas
share) holding that as to those portions of the property the plaintiff had
not established title ; but in other respects affirmed the decree for sale of
the first Court. On appeal to Her Majesty in Council, their Lordships of

(1) 17 I.A. 201 = 180. 164.
288



YIIJ



MATA DIN KASODHAN V. KAZIM HUSAIN



13 All. 453



the Privy Council differing from the High Court, held thafc tha 17 dhurs
and tha 2-annas share ware liable to be sold at the suit of the plaintiff.
Their Lordships gave certain diroctions as to the interest which was to be
allowed in taking the accounts. Their Lordships discharged the order of
the High Court, and instead made an order declaring fche plaintiff's right
te redeem Zahur's prior incutnbranca ; and in tha event of his exercising
such right to redeem, they declared the rights of Zahur in respect of her
previous incumbrance to redeem the plaintiff.

They directed the Court to make such enquiries and take such
accounts as were proper for carrying their declarations into effect, and to
fix reasonable periods of time within which the plaintiff and Zahur should
exercise the rights of redemption declared to belong to them. Their
Lordships also declared that if the plaintiff and Zahur, respectively, did
not exercise their rights of redemption within such time as the Court by
its final order in that behalf might direct, they should respectively be
foreclosed and debarred from all righh of redemption, and in all other
respects they affirmed the decree of the first Court of the 17th of September
1883.

Excepting the decision in Baghunath Prasad v. Jurawan Bai (1),
possibly the judgment of Turner, J., in Khub Ghandv. Kalian Das (2), his
judgment in VencataCheila Kandian v. Panjanadien [453] (3), the decision
in Gangadhara v. Sivarama (4), tha judgment of Mahmood, J., in Sirbadh
Bai v. Baghunath Prasad (5), and his judgment in Janki Prasad v. Sri
Matra Mautangni Deb'ia (6), the decisions to which I have referred show,
and I think rightly, that; as well before as since Act IV of 1882 come into
force a mortgagee had no right to bring mortgaged property to sale under
his mortgage without redeeming the prior mortgagee, if any, or affording
the subsequent mortgagee, if any, an opportunity to redeem, and that in a
suit by a mortgagee for sale on his mortgage, the other mortgagees,
whether prior or subsequent, were necessary parties ; and further that the
property which might effectively be brought to sale under a decree for
sale in a mortgage suit was the specific immoveable property, and not
merely the rights and interests of uhe plaintiff and his mortgagor in such
property. I may, I think, fairly assume that those of the decisions to
which I have referred which were prior to 1882 were considered by the
Legislature and its advisers before the Legislature passed Act IV of 1882,
the Preamble of which is as follows: "Whereas it is expedient ko define and
amend certain parts of the law relating to the transfer of property by act of
parties, it is hereby enacted as follows :" I now propose to consider Act IV
of 1882, so far as it bears on the questions before us, I shall also refer to
section 25 of the English Statute 44 and 45Vic., c. 41, which has been press-
ed upon our attention, and which, it was contended, was followed by the
Indian Legislature in Chapter IV of Act IV of 1882. The Transfer of Pro-
perty Act, 1882 'Act IV of 1882), received the assent of the Governor-
General on the 17th of February 1882, and came into force on the 1st of
July 1882. The history of that Act is to be found at the close of the
Introduction to the Act in Dr. Whitley Stokes' Anglo-Indian Codes.
The Transfer of Property Act, 1882, differs in many important particulars
with regard to mortgages from the Conveyancing and Law of Property Act,
1881 (44 and 45 Vic.,c. 41), which having received the Koyal assent
on the 22nd of August 1881. came into force on the 31st of December 1881.



(1) 8 A. 105.
(5) 7 A. 568.



(2) 1 A. 247,
(6) 7 A. 577.



(3) 4 M. 213.



(4) 8 M. 246.



1991

JULY 25.

FULL
BENCH.

13 A. 432

(F.B.).



A VII 37



289



13 All. 454



INDIAN DECISIONS, NEW SEBIES



[Yol.



1891

JULY 25.
-

FULL



13 A. 482

(F.B.).



We may [454] fairly assume that the Legislature and its advisers, before the
Transfer of Property Act, 1882, was passed, were aware of the provisions
contained in the 44 and 45 Vio. c, 11. A comparison of section 25 of that
Statute with some of the sections in Chapter IV of Act IV of 1882 will
8DOW now dissimilar in many important respects are the provisions con-
tained in the latter sections to the provisions contained in section 25 of 44
a nd 45 Vic., c. 41. Many of the provisions contained in section 25 of the
44 and 45 Vic., c. 41, appear to me to be more or less dissimilar to the
provisions contained in sections 67, 74, 86, 87, 88, 89, 90, 92, 93, 96, and
97 of Act IV of 1882. Under sub-section 1 of section 25 of 44 and 45
Vic., c. 41, any person entitled to redeem mortgaged property may have a
judgment or order for sale instead of for redemption in an action brought
by him either for redemption alone, or for sale alone, or for sale or redemp-
tion in the alternative. Under Act IV of 1882, section 60, a mortgagor
has, after the principal money has become payable, a right of suit for
redemption. Under section 75 every second or subsequent mortgagee as
against a prior mortgagee or mortgagees has a right of suit for redemption
if his mortgagor has a right of suit for redemption against such prior
mortgagee or mortgagees, but not otherwise. Section 91 gives certain
other persons a right of suit for redemption. I do not suppose that^it
could be contended that any of the persons mentioned in section 91 could
maintain a suit against a prior incumbrancer, unless such person derives
title through or from a person who had, prior to the suit, a right of suit
for redemption against such prior incumbrancer, or in other words, that
any of the persons referred to in section 91 could be in a better'position to
maintain a suit for redemption against a prior incumbrancer than would
a second or subsequent mortgagee under section 75. In a suit for redemp-
tion under sections 92 and 93 an order of sale cannot be made without
giving the plaintiff an opportunity, after accounts have been taken or the
amount due has been declared, of redeeming, and if the plaintiff makes
default in paying such amount, it is on the application of the defendant
that the Court can make final order for sale. Under sub-section 2 of
section 25 of the 44 and 45 Vic., [455] c. 41, in any action whether for
foreclosure, or for redemption, or for sale, the Court, on the request of
the mortgagee or of any person interested either in the mortgage money
or in the right of redemption, and without allowing any time for
redemption or for payment of any mortgage money, may, if it thinks fit,
direct a sale of the mortgage property on such terms as it thinks fit,
including if it thinks fit, the deposit in Court of a reasonable sum, fixed
by the Court, to meet the expenses of sale and to secure performance of
the terms. Under that section, Fry, J., in Woolley v. Colman (1), held
that a reserved price large enough to cover what was due to mortgagees
who opposed the sale must be fixed ; that the plaintiff should give security
for the costs of the sale, the conduct of which was given to him, and which
was directed to take place out of Court ; and that the proceeds of the
sale should be brought into the Court.

The rights of a mortgagee as against the mortgagor, so far as the
right to maintain a suit for foreclosure or sale are concerned, are defined
by section 67 of Act IV of 1882. Section 75 of that Act gives, by
declaration of the law, a second or subsequent mortgagee, so far as regards
redemption, foreclosure and sale of the mortgage property, the same rights
against the prior mortgagee or mortgagees as his mortgagor has against

(1) L.R. 31 Gh. D. 169,
290



11]



MATA DIN KASODHAN V. KAZIM HUSAIN



13 All. *57



such prior mortgagee or mortgagees, and the same rights against the
subsequent mortgagees, if any, as he has against his mortgagor. Whether
the suit be for foreclosure under sections 86 and 87 or for sale under
sections 88 and 89, an opportunity must be allowed the defendant, after
accounts have been taken, or the amount due has been declared, of pay-
ing the amount due before final forclosure or final order for sale.

I think it is from the sections to which I have referred apparent that
the Legislature in passing Act IV of 1882, did not in Chapter IV follow
sections 25 of 44 and 45 Vic., c. 41.

Before proceeding further to consider Chapter IV of Act IV of 1882,
I shall refer to section 2 of that Act. By section 2 of Act IV of 1882, it is
enacted that nothing in the Act contained [456] shall be deemed to
affect " (c) any right or liability arising out of a legal relation constituted
before this Act comes into force, or any relief in respect of any such right
or liability ; or (d) save as provided by section 57 and Chapter IV of this
Act, any transfer by operation of law, or by or ia execution of a decree or
order of a Court of competent jurisdiction." The procedure by which a
right or liability may be determined orenforced or a relief may be obtained
is not a right,, liabilility or relief within the meaning of saving clause (c) of
section 2. On that point Ganga Sahai v. Kishen Sahai (.1) and Bhobo
Sundarz Debi v. Rakhal Chunder Bose (2) are authorities. As was said
by James, L. J., in Warner v. Murdoch (3) "no one has a vested right in
any particular form of procedure."

I have referred to saving clause (c) of section 2 of Act IV of 1882, as ifc
has been arranged that we should in our judgment in this appeal express our
opinions as well on the general principles relating to the rights, liabilities
and reliefs of the parties to this appeal, as on the general principles relating
to the rights, liabilities and reliefs of the parties to another appeal which has



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 44 of 155)