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Govindrav and anr. Vs. Ravji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom33
AppellantGovindrav and anr.
RespondentRavji and anr.
Excerpt:
mortgage - subsequent assignment of the equity of redemption by the mortgagor--no notice to mortgagees of such assignment--no change of name in collector's books--further advances by mortgagees to original mortgagor on same security--suit by assignee of equity of redemption to redeem--liability of assignee to pay off the further advances to mortgagor--standing by--allowing original mortgagor's name to remain in collector's books. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the..........advances to pandoji on the same security in 1873. in the meantime, however, pandoji had sold his equity of redemption to the plaintiffs in 1871. the district judge held that as the plaintiffs had not given notice to the defendants of their assignment, they could not redeem the property, except on condition of paying the debt of 1873 as well as that of 1869. we do not feel sure whether the district judge intended to hold that notice to the mortgagee in possession was necessary to complete the plaintiffs' title as assignees of the equity of redemption. by english law it is clear that the assignment of an equitable estate in immoveable property is complete without notice to the owner of the legal estate--wilmot v. pike 5 hare's. rep., p, 14, where the owner of the legal estate was the.....
Judgment:

Charles Sargent, C.J.

1. The facts of the case as found by the District Judge are that the defendants are the mortgagees under Pandoji by registered mortgage of 1869; and that they afterwards made further advances to Pandoji on the same security in 1873. In the meantime, however, Pandoji had sold his equity of redemption to the plaintiffs in 1871. The District Judge held that as the plaintiffs had not given notice to the defendants of their assignment, they could not redeem the property, except on condition of paying the debt of 1873 as well as that of 1869. We do not feel sure whether the District Judge intended to hold that notice to the mortgagee in possession was necessary to complete the plaintiffs' title as assignees of the equity of redemption. By English law it is clear that the assignment of an equitable estate in immoveable property is complete without notice to the owner of the legal estate--Wilmot v. Pike 5 Hare's. Rep., p, 14, where the owner of the legal estate was the first mortgagee, as in the present case. Nor are we aware of any rule of Hindu law which requires us to hold differently as regards the necessity of notice to the person in possession whose position may be considered analogous to the holder of the legal estate in English law. But, although notice to the defendants was not, we think, necessary to complete the plaintiffs' title as assignees of the equity of redemption, it is plain, upon general principles of equity, that if the plaintiffs' conduct was such as to amount to a standing by, and allowing the defendants to make further advances to Pandoji, under the supposition that he was still the owner of the equity of redemption, such conduct would give the defendants a better equity. If the property was standing in Pandoji's name in the Collector's books, the allowing it so to remain after the assignment would, in our opinion, be sufficient for the purpose. We must, therefore, send back the case for a finding on the following issues:

1. Was the property standing in the name of Pandoji in the Collector's books when the assignment was made to the plaintiffs, and, if so, did it continue to stand in his name when the further advances were made by the defendants?

2. Were the plaintiffs aware of the negotiation for the further advances by the defendants to their uncle Pandoji in 1873?

2. The findings to be returned to this Court within two months. Parties to be allowed to give fresh evidence.


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