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Maharu Lotu Vs. Khandu Hari Patil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1924)26BOMLR742
AppellantMaharu Lotu
RespondentKhandu Hari Patil
DispositionAppeal dismissed
Excerpt:
.....to his nephew b, but on october 27, 1913, he conveyed them by deeds to c, and on november 6, he executed another conveyance of the same lands, professedly in pursuance of the agreement of october 2, to b, and immediately put him in possession thereof. while attending before the sub-regiatrar at an enquiry for registration of the deeds of october 27, a declared that he had signed them as deeds of mortgage and not of sale, c subsequently instituted proceedings for possession of the lands:;that there being no evidence as to inducement or misrepresentation, the plaintiff c's deeds of october 27, 1913, had priority over b's deeds, dated november 1913, and c was, therefore, entitled to possession. - .....by an actual sale, and on october 27, 1913, he sold the same lands to the second respondent by two sale-deeds. following upon that he also made a conveyance on november 6, 1913, in virtue of the first agreement. in the attestation which has to be appended at registration the vendor in respect of the sale of october 27, 1913, made a statement that he had signed the document in question not as sales, but as mortgage deeds priority of time is in favour of the two sales which happened upon october 27, and they, therefore, must be got rid of, and the way in which the defendant, whose transferee had got into possession, endeavoured to get rid of them was to asseverate that when he appended his signature to the two sale deeds on october 27, he was so drunk that he did not know what he was.....
Judgment:

Dunedin, J.

1. In this case the first respondent, the owner of certain separate parcels of land, entered into an agreement to sell those lands on October 2, 1913, to the appellant. He did not at the time follow that up by an actual sale, and on October 27, 1913, he sold the same lands to the second respondent by two sale-deeds. Following upon that he also made a conveyance on November 6, 1913, in virtue of the first agreement. In the attestation which has to be appended at registration the vendor in respect of the sale of October 27, 1913, made a statement that he had signed the document in question not as sales, but as mortgage deeds Priority of time is in favour of the two sales which happened upon October 27, and they, therefore, must be got rid of, and the way in which the defendant, whose transferee had got into possession, endeavoured to get rid of them was to asseverate that when he appended his signature to the two sale deeds on October 27, he was so drunk that he did not know what he was about. He went to proof upon that allegation, and that statement has been held to be untrue. It was also open to him to make the case that whereas he in fact signed sale deeds it had been represented by the other party that what he was really signing were mortgage deeds, in which case he would have been entitled to be relieved against this fraudulent act. At the trial as originally conducted he really gave no evidence as to any representation of that sort; but entirely confined himself to this allegation about his state of utter drunkenness, and accordingly all the evidence that was left was that there was in fact an antecedent agreement to sell; there was a certain conversation antecedent to the deeds of sale, in which he proposed to mortgage, and then there was what may be called a blank as to what happened at the actual transaction. Notwithstanding that, the learned Judge in the Court of first instance gave judgment in favour of there being no proper transaction of sale. The case then went on appeal to the High Court, and the High Court, feeling that the true matter had not been enquired into, sent it down again and put upon the defendant the necessity of showing that his signature to these two sale deeds had been obtained under a misrepresention. He led no further evidence and the ease was then heard by a second Judge, who repeated the judgment. The second Judge seems to have gone upon the view that inasmuch as the vendor had said in his attestation as to his signature that he had signed mortgage deeds and not sale deeds, that showed the impression that he was under, and it must be inferred that that impression had been induced by the action of the other party. The High Court reversed. It is impossible for their Lordships to draw such an inference as was drawn by the trial Judge, and their Lordships, therefore, think that it is quite clear that the case here is not made out, and they will humbly advise His Majesty that the appeal should be dismissed with costs.


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