Skip to content


Bai Jayagavri Vs. Purshotamdas Sunderlal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 510 of 1916
Judge
Reported inAIR1917Bom15; (1918)20BOMLR177
AppellantBai Jayagavri
RespondentPurshotamdas Sunderlal
Excerpt:
.....judge was right in holding that the 4th defendant was protected by the plea of bona fide purchase for value without notice, and for the reasons already indicated, we cannot hold that the possession enjoyed by him during the life of hariganga can be taken to be adverse to the remainderman who was only entitled to assert her right when the life tenancy of hariganga expired......that an outstanding mortgage has not been extinguished, in the hope that the person entitled to that mortgage may not assert his claim. we, therefore, do not think that the learned district judge was right in holding that the 4th defendant was protected by the plea of bona fide purchase for value without notice, and for the reasons already indicated, we cannot hold that the possession enjoyed by him during the life of hariganga can be taken to be adverse to the remainderman who was only entitled to assert her right when the life tenancy of hariganga expired.6. for these reasons we set aside the decree of the district judge and restore that of the trial court, the result being that the plaintiff is in the position of a mortgagee, and the 4th defendant has an opportunity of redeeming.....
Judgment:

Basil Scott, Kt., C.J.

1. In 1885 Pranjivan became the mortgagee of the plaint property. In 1890, the right, title and interest of the mortgagor was purchased by the predecessors of the defendants Nos. 1 and 2. In 1899, Pranjivan died leaving a widow Hariganga and a daughter's daughter, the plaintiff. He also left a will whereby substantially the widow Hariganga was given a life-interest in the property, and the grand-daughter the remainder absolutely. In 1900, the defendant No. 3 who was a confidential clerk of Hariganga purchased from defendants Nos. 1 and 2 the equity of redemption in the mortgage. He says that, on the 5th of April 1900, he paid off the mortgage. The mortgage-deed bears an endorsement that the mortgage is satisfied. But it is found as a fact in both Courts that the endorsement is a sham, that nothing was really paid in satisfaction of the mortgage, and that the mortgage still subsists. No transfer of the property was taken by the 3rd defendant from the representative of the mortgagee, Hariganga. The 3rd defendant, on the 15th of February 1912, transferred the property to the 4th defendant. In 1914, Hariganga died, and this suit is filed by the plaintiff, the remainderman under the mortgagee's will, to recover possession as mortgagee from the 4th defendant, or to recover the amount of the mortgage debt. The 4th defendant pleads that he is a bona fide purchaser for valuable consideration without notice. The learned District Judge has held that this plea is established. We are unable, however, to agree with this conclusion,

2. It is stated in Coote on Mortgages, p. 1425 of the 8th Edition, that 'where... a mortgagee desires to release his debtor without consideration, he can only effectually do so at law by deed ; for, otherwise, there would be a mere gratuitous promise by the mortgagee to forbear from exercising his rights of action to enforce payment, which, by an elementary rule of law, would not be binding on the releasor.' The method of procedure by deed, on the principle that a deed imports consideration, has no application in India. It follows that the endorsement in question amounts merely to a gratuitous promise not binding on the releasor. And that indeed is the conclusion arrived at by the learned Judge himself when he holds that the endorsement was a sham, that nothing was paid in satisfaction of it, and that the mortgage still subsists.

3. The appeal to Section 41 of the Transfer of Property Act cannot avail the appellant for the defendant 3 never became the ostensible owner, inasmuch as there was no transfer to him from Hariganga, in whom consequently the title always remained. Moreover, it appears to us doubtful whether the required ' consent of the persons interested' can be said to be furnished where the only consent given is that of a Hindu widow, as tenant for life, the remainderman being no party to such consent.

4. Here, then, we have the assignee of an equity of redemption, who claims also to be an assignee of the mortgagee's rights who has taken no re-transfer of the property from the mortgagee or his representative, and whose assignor has taken no re-transfer of those rights. The mortgage-deed is registered, and the purchaser must be taken to have notice that there has been no re-transfer. It is no doubt true that his transferor had possession which was obtained, as it appears, out of affection from the widow of the mortgagee, and that possession would enure for the benefit of the assignee, the 4th defendant, be long as the life tenant of the mortgagee-testator survived. But it could not prejudice the remainderman on the principle which is frequently applied as between landlord and persons claiming adversely to a lessee, and which is stated in Shelford's Real Property Statutes, p. 169, thus: 'Where property is under lease, adverse possession runs against the reversioner from the expiration of the lease, or from the time when the tenant pays rent to one claiming wrongfully to be entitled in immediate reversion.

5. The present case appears to be one of a type which is very common in India, where the purchaser has not taken the trouble to investigate the title of his transferor. It is not safe, and very often it is not honest, to take an assignment of a property in which investigation would show that an outstanding mortgage has not been extinguished, in the hope that the person entitled to that mortgage may not assert his claim. We, therefore, do not think that the learned District Judge was right in holding that the 4th defendant was protected by the plea of bona fide purchase for value without notice, and for the reasons already indicated, we cannot hold that the possession enjoyed by him during the life of Hariganga can be taken to be adverse to the remainderman who was only entitled to assert her right when the life tenancy of Hariganga expired.

6. For these reasons we set aside the decree of the District Judge and restore that of the trial Court, the result being that the plaintiff is in the position of a mortgagee, and the 4th defendant has an opportunity of redeeming upon paying the price found to be due by the lower Court. Costs throughout to be added to the mortgage debt. The cross-objections are dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //