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Bhau Nana Patil Vs. Revappa Satappa Shintre - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 54 of 1934
Judge
Reported inAIR1938Bom196; (1938)40BOMLR109
AppellantBhau Nana Patil
RespondentRevappa Satappa Shintre
DispositionAppeal dismissed
Excerpt:
transfer of property act (iv of 1882), section 67a-retrospective effect-construction of statute.; section 67a of the transfer of property act, 1882, has no application to mortgages executed before april 1, 1930. - - we have been through the evidence and are satisfied that the consideration for the bond is proved and therefore that the consideration for the mortgage in suit is proved. but we are informed that up to the present time nothing whatever has been paid upon the mortgage, and in view of this fact and the apparent fact that the defendants are more or less well-to-do we see no reason to disturb the order of the lower court with regard to instalments......consideration for the bond of rs. 1000 which is expressed to form part of the consideration of the suit mortgage. we have been through the evidence and are satisfied that the consideration for the bond is proved and therefore that the consideration for the mortgage in suit is proved.4. the last point is the question of instalments. the learned judge has refused instalments mainly upon the ground that the defence was false in its denial of the receipt of the consideration. we are asked to set aside that part of the order since the defendants did in fact admit more than half of the consideration. but we are informed that up to the present time nothing whatever has been paid upon the mortgage, and in view of this fact and the apparent fact that the defendants are more or less well-to-do we.....
Judgment:

Macklin, J.

1. This is a suit on a mortgage purporting to be for Rs. 3000 executed in 1919 by defendants Nos. 1 to 3 in favour of the plaintiffs. The claim was allowed in the main by the trial Court and instalments were refused. The defendants now come in appeal on the ground that the consideration was not paid in full, that instalments should have been allowed, and that Section 67A of the Transfer of Property Act is a bar to the present suit.

2. I take first the question of Section 67A. That section provides that ' a mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67 ' cannot sue on his mortgages separately. It was contended in the lower Court also that this section was a bar to the present suit, since upon the same day as the mortgage in this suit was executed a further mortgage for Rs. 2000 was executed between the same parties and a suit upon that further mortgage has already been brought in the Chikodi Court. The learned trial Judge, however, held that the section was not a bar to the present suit, partly because the mortgages were not upon the same property (and the learned Judge was of opinion that Section 67A refers only to two or more mortgages upon the same property) and partly because in his view Section 67A is not retrospective and cannot apply to a mortgage executed before April 1, 1930'. I have some doubt as to whether upon the strict wording of the section its operation can be confined only to mortgages upon the same property, though it may be that the section was enacted because of the possible hardship to a mortgagor who has twice mortgaged the same property having the property sold subject to a prior mortgage and being put to the inconvenience of two suits in respect of the same property. But I have no doubt that the learned Judge was right when he says that the section cannot apply to mortgages executed before April 1, 1930, since the section was inserted by Section 32 of the Amending Act XX of 1929, and Section 63 of the Amending Act says in effect that Section 32 of the Amending Act is not retrospective.

3. On the question of consideration, what is denied is the consideration for the bond of Rs. 1000 which is expressed to form part of the consideration of the suit mortgage. We have been through the evidence and are satisfied that the consideration for the bond is proved and therefore that the consideration for the mortgage in suit is proved.

4. The last point is the question of instalments. The learned Judge has refused instalments mainly upon the ground that the defence was false in its denial of the receipt of the consideration. We are asked to set aside that part of the order since the defendants did in fact admit more than half of the consideration. But we are informed that up to the present time nothing whatever has been paid upon the mortgage, and in view of this fact and the apparent fact that the defendants are more or less well-to-do we see no reason to disturb the order of the lower Court with regard to instalments.

5. The result is that the appeal must be dismissed with costs.


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