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Khandu Dubladas Vs. Tarachand Amarchand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom574
AppellantKhandu Dubladas
RespondentTarachand Amarchand
Excerpt:
act xix of 1843 - act xx of 1866, section 50--registration--gage--account--res judicata--notice. - 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 post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141..........mortgage was registered, makes no provision in such cases for priority of deeds of sale or mortgages registered under that act over deeds of sale or mortgages which might have been, but were not, registered under act xix of 1843. we cannot, therefore, adopt the view taken by the assistant judge of the consequence of the non-registration of the plaintiff's mortgage which was executed on the 26th july 1860, and was, therefore, registrable under act xix of 1843, the defendant's mortgage having been executed on the 20th october 1869, and registered under act xx of 1866.2. the authorities relied upon by the assistant judge were cases in which all of the conflicting documents were registrable under act xix of 1843, and, therefore, are inapplicable to the present case, in which one of.....
Judgment:

Michael Westropp, C.J.

1. The plaintiffs and defendant's mortgages were both for sums exceeding Rs. 100. Act XX of 1866, under which the defendant's mortgage was registered, makes no provision in such cases for priority of deeds of sale or mortgages registered under that Act over deeds of sale or mortgages which might have been, but were not, registered under Act XIX of 1843. We cannot, therefore, adopt the view taken by the Assistant Judge of the consequence of the non-registration of the plaintiff's mortgage which was executed on the 26th July 1860, and was, therefore, registrable under Act XIX of 1843, the defendant's mortgage having been executed on the 20th October 1869, and registered under Act XX of 1866.

2. The authorities relied upon by the Assistant Judge were cases in which all of the conflicting documents were registrable under Act XIX of 1843, and, therefore, are inapplicable to the present case, in which one of the mortgages only was registrable under that Act, and the other was registrable under Act XX of 1866. The two latter of those cases--Hamamgir v. Spiers and Parabhudas v. Dhondu-are (on the question as to the effect of possession) the subject of comment in Balaram Nemchand v. Appa Dulu (9 Bom. H.C. Rep., 121: see pp. 138, 139, and 141).

3. Whether, in the case of instruments executed for a consideration under Rs. 100, where the earlier document was registrable under Act XIX of 1843, and the later document was so under Act XX of 1866, the 50th section of that Act would give to the later document, if registered, priority over the earlier document, if unregistered, is a question which does not present itself here, and on which we offer no opinion.

4. The plaintiff, the first mortgagee, is now entitled to recover possession of the. house and site, the subject of this suit, and to hold the same as against the defendant, the second mortgagee, and we decree that such possession be forthwith given to the plaintiff; but we will give liberty to the defendant to redeem the same on payment of the sum which may be found now due to the plaintiff upon an account duly taken in respect of the mortgage to him by Raghu of the 26th July 1860. The decree in the plaintiff's suit '(No. 1198 of 1872) against Raghu is not binding upon the defendant, who, though he became a purchaser on the 7th June 1872, was not made a party to that suit, which seems to have been instituted on or about the 17th July in the same year. Therefore the account taken in that suit is not conclusive upon the defendant.

5. The defendant must, within one calendar month after this decree has been notified to him, inform the subordinate Court whether or not he intends to redeem, and, if so, whether he demands that an account should be taken of what is due to the plaintiff. If he do within that time demand that such account should be taken, the subordinate Court should, within the period of three calendar months from such demand, take and complete such account; and if the defendant do, within three calendar months (from the time the amount found due on such account to the plaintiff is notified by the subordinate Court to the defendant), pay to the plaintiff that amount and the costs of the suit, and of the regular appeal, the defendant shall be at liberty to redeem and recover the house and site (the subject of this suit) from the plaintiff; but if the defendant do not pay such amount and such costs to the plaintiff within the last-mentioned period of three calendar months, the defendant is to be for ever barred and foreclosed from redeeming the said house and site from the plaintiff. The parties respectively are to bear their own costs of this special appeal.


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