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Nanjundepa and Gurulingapa Vs. Hemapa BIn Irapa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom10
AppellantNanjundepa and Gurulingapa
RespondentHemapa BIn Irapa and ors.
Excerpt:
decree - execution--sale of equity of redemption--purchaser at execution sale--sale in execution of decree on mortyege prior in date--priority--possession--notice--certificate of sale. - - 3. when the plaintiffs sought possession, they were resisted by defendants, and failed in their application for the removal of the resistance they then sued to establish their right. one of these was a sale of the property, and all rights of maribasapa in it, on failure of the mortgagor maribasapa to pay what should be decreed against him on the mortgagee's suit. the appellants who were thus left, to buy what, so far as they knew, was a complete title, ought not to be disturbed at the instance of the plaintiffs who failed to assert their dormant right, unless that is an absolute legal right arising..........1877, but possession was not obtained; nor until the 31st july, 1878, was a certificate of sale obtained by the purchaser.2. in the meantime, maribasapa was made defendant in two suits filed after the sale of january, 1877, on mortgages executed prior to that date and found by the district judge to be genuine and valid. in execution of the decrees obtained on these mortgages, the property in dispute was sold to purchasers represented by defendants nanjundepa and nilowa. the purchasers promptly got possession; their sale-certificates were obtained on the 5th february, 1878, and the 1st november, 1878, one earlier and one later than the certificate of sale obtained by the plaintiffs' pre-decessor.3. when the plaintiffs sought possession, they were resisted by defendants, and failed.....
Judgment:

West, J.

1. In this case the plaintiffs' predecessor in title purchased the interest of Maribasapa in the property in dispute at a sale in execution of a decree on a simple debt. This was on the 18th January, 1877, but possession was not obtained; nor until the 31st July, 1878, was a certificate of sale obtained by the purchaser.

2. In the meantime, Maribasapa was made defendant in two suits filed after the sale of January, 1877, on mortgages executed prior to that date and found by the District Judge to be genuine and valid. In execution of the decrees obtained on these mortgages, the property in dispute was sold to purchasers represented by defendants Nanjundepa and Nilowa. The purchasers promptly got possession; their sale-certificates were obtained on the 5th February, 1878, and the 1st November, 1878, one earlier and one later than the certificate of sale obtained by the plaintiffs' pre-decessor.

3. When the plaintiffs sought possession, they were resisted by defendants, and failed in their application for the removal of the resistance They then sued to establish their right. The Subordinate Judge awarded to them a right to redeem on paying defendants, who had purchased in execution under the sale on the mortgage the amount due on account of the mortgage. He thus put the first purchaser in the place of the mortgagor and the' subsequent purchasers in the place of the mortgagee before the suit and sale.

4. Both parties appealed, and the District Judge decreed that the plaintiffs should obtain possession on paying to the defendants holding under the mortgage sale, not the sums due on account of the mortgages, but the amounts of their respective purchase moneys.

5. Now, when the plaintiffs' predecessor bought Maribasapa's interest, that interest was already subject to deduction in such way's as should be requisite to give effect to his mortgage. One of these was a sale of the property, and all rights of Maribasapa in it, on failure of the mortgagor Maribasapa to pay what should be decreed against him on the mortgagee's suit. Thus the plaintiffs' predecessor gained no interest by his purchase which was not liable to entire defeat by the suit and sale on the mortgage, and the purchasers under that sale would take by title prior. in origin and superior to his. But then the earlier purchaser of Maribasapa's interest, which was that of a mortgagor, having by this become the person really interested, ought, it may be said, to have been made a party-defendant by the mortgagee, and cannot be affected by his suit against a mortgagor who had ceased to have any real interest in the property. Generally the mortgagee must make defendants of all who are interested in the equity of redemption; but in this case the purchaser of the equity of redemption had not yet either got possession or obtained a certificate of sale when the sale took place under the decree on the mortgage. The title of the plaintiffs was thus only an inchoate title; the mortgagee suing the still ostensible owner Maribasapa does not seem to have had notice of the plaintiffs' incipient right; but if he had, the purchasers in execution represented by the present appellants had no such notice. It does not appear that when the proclamations of intended sale were put forth, any one came forward on either occasion to assert the rights now relied on the one side and the other. The appellants who were thus left, to buy what, so far as they knew, was a complete title, ought not to be disturbed at the instance of the plaintiffs who failed to assert their dormant right, unless that is an absolute legal right arising out of their earlier purchase which can be asserted even after the sale under the mortgage. It does not seem to us that they have such a right. The case of Lachminarayan v. Indrabhan Printed Judgments for 1883, p. 254 is directly against it, and this is a stronger case than that, inasmuch as there the second sale was, like the first, on a money decree, while here the second sale was under a mortgage giving a right to have the whole estate made available for satisfaction of the debt. Had the plaintiffs got into possession or obtained a certificate and registered it, there would then no doubt have been notice given sufficient to put all persons interested on inquiry as to their rights; but while they chose to - keep their rights wholly in the dark, they invited others to act if those rights were not in existence; and they cannot look to the Courts to extend and complete such rights in a way which would make the 'defendants the victims, not of their own negligence, but of the negligence of those who would gain by it.

6. As to the doctrine of Sobhagchand Gulabchand v. Bhaichand I.L.R. 6 Bom. 193 that a judgment-debtor's interest is sold subject to all existing equities against him, it is plain that in the present case the equitable right of the plaintiffs at the time of the sale to the appellants, however good as against Maribasapa, had not yet become a right in re, an ownership good against every one even as to the remnant of ownership (including possession) left to the mortgagor. 'When the appellants then purchased without notice of the plaintiff's equitable right, they acquired a right at least as good; and fortified by possession, this tittle became a complete one Shivram Narayan Mekal v. Ravji Sakhdrdm Pdradhan I.L.R. 7. Bom. 254 as against a mere equity available against Maxi-basapa, but not except through notice, against those who took his estate by purchase without his consciousness of latent obligations or inchoate rights derogating from his ownership, or other capable of being asserted against it in the way prescribed by law.

7. We must, for these reasons, reverse the decrees of the Courts below and reject the plaintiffs' claim with costs throughout.


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