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Agarchand Gumanchand Vs. Rakhma Hanmant and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom678
AppellantAgarchand Gumanchand
RespondentRakhma Hanmant and anr.
Excerpt:
.....land subsequently sold by mortgagee in execution of a money decree--purchaser at such sale without notice of mortgage--mortgagee estopped from subsequently enforcing his mortgage as against purchaser--fraudulent concealment of lien--registration not equivalent to notice in case of fraud--limitation act xv of 1877, schedule 11, article 138--landlord and tenant--tenant denying landlord's title--notice to quit--decree--execution--civil procedure code (viii of 1859), section 213 - - , 168 in which it has been held that registration amounts to notice to all subsequent purchasers of the same property, clearly do not govern a case where there has been a fraudulent concealment by a judgment-creditor of the extent of his judgment-debtor's interest in the property brought by the..........as to the title of the apparent owners of the property. the third defendant, when bringing the property to sale, was bound by section 213(1) of the civil procedure code (viii of 1859) to disclose the limited interest of his judgment-debtors in it. by concealing his lien he induced the plaintiff to pay full value for the property, and he cannot now retain his lien. by his omission he is estopped from disputing the plaintiff's title. see tukaram v. ramchandra i.l.r., 1 bom., 314 and dullab sirkar v. krishna kumar 3 beng. l.r., 407.3. as the first and second defendants claim to be only tenants of the third defendant, they cannot retain possession of the land, merely because the plaintiff has failed to prove the alleged letting. they deny the plaintiff's title, and are not entitled to.....
Judgment:

Birdwood, J.

1. The third defendant (Gangaram) held a money decree against Rakhma and Gajia, the first and second defendants, and also a mortgage on the land in suit. He brought the land to sale on his money decree, but in his application for attachment concealed the fact of his mortgage. The plaintiff was the purchaser, and he now sues to eject the first and second defendants, who, as he says, became his tenants for one year after he had obtained possession under his sale, but refused to vacate at the end of the year. The sale took place in 1870. The plaintiff was put in possession by the Court in February, 1872. The third defendant, however, displaced this possession in. April, 1872, under a decree for possession obtained by him on his mortgage bond against the first and second defendants. The present suit was brought in 1883.

2. It has been argued that it is barred under Article 138 of Schedule II of Act XV of 1877; but we cannot apply that article to the claim, for the plaintiff obtained possession from the Court within the twelve years preceding the suit. The lower appellate Court has held that the plaintiff cannot succeed, because he must be held to have had notice of the third defendant's mortgage when he purchased, as that mortgage was registered, and that he purchased, therefore, only the equity of redemption; and both the Courts below have held that the alleged lease to the first and second defendants is not proved. But the decisions in such cases as Lakshmandas Sarupchand v. Dasrat I.L.R., 6 Bom., 168 in which it has been held that registration amounts to notice to all subsequent purchasers of the same property, clearly do not govern a case where there has been a fraudulent concealment by a judgment-creditor of the extent of his judgment-debtor's interest in the property brought by the judgment-creditor to sale. There was nothing in the circumstances of the court-sale in the present case to put the plaintiff on enquiry as to the title of the apparent owners of the property. The third defendant, when bringing the property to sale, was bound by Section 213(1) of the Civil Procedure Code (VIII of 1859) to disclose the limited interest of his judgment-debtors in it. By concealing his lien he induced the plaintiff to pay full value for the property, and he cannot now retain his lien. By his omission he is estopped from disputing the plaintiff's title. See Tukaram v. Ramchandra I.L.R., 1 Bom., 314 and Dullab Sirkar v. Krishna Kumar 3 Beng. L.R., 407.

3. As the first and second defendants claim to be only tenants of the third defendant, they cannot retain possession of the land, merely because the plaintiff has failed to prove the alleged letting. They deny the plaintiff's title, and are not entitled to any notice to quit. We, therefore, reverse the decrees of the Courts below, and award the claim with costs.

Parsons, J.

4. There can be no doubt on the authorities-Dullab Sirkar v. Krishna Kumar 3 B L.R., 407 v. Tukaram v. Ramchandra I.L.R., 1 Bom., 314 Tinnapa, Chetti v. Murugappa, Chetti I.L.R., Mad., 107 and Hari v. Lakshman I.L.R., 5 Bom., 614 that where a judgment-creditor sells property as that of his judgment-debtor he is estopped from setting up a previous mortgage which had been created in his own favour of which he has given no notice and in ignorance of which the purchaser has bid for the property and paid the full price It is argued that in. the present case the mortgage-deed being registered, the purchaser had notice thereof-Lakshmandas Sarupchand v. 'Dasrat I.L.R., 6 Bom., 168 . That case, however, appears to have no bearing upon this case, for here the person who caused the property to be sold was the judgment-creditor himself. He was by Section 213 of the Civil Procedure Code (VIII of 1859) bound to specify the judgment-debtor's interest in the property to the best of his belief, If he fraudulently conceals the fact of his mortgage, and specifies the judgment-debtor's interest to be that of an unincumbered ownership of the property, and if relying on that specification the purchaser gives what may fairly be considered to be the full value of the property, the judgment-creditor is clearly estopped from afterwards setting up his mortgage. He cannot reap the benefit of his fraud and obtain the full value of the property twice over.

5. It is further argued that the plaintiffs suit is time-barred. As, however, the plaintiff was placed in possession after his purchase, and has been in possession within twelve years of suit, and as the defendant No. 3's possession admittedly commenced only in April, 1872, and the suit is brought within twelve years from that time, the suit is within time. The decree that the defendant No. 3 obtained against his mortgagors after he had caused their interest to be sold, was fraudulent and is null and void as against plaintiff. I concur in reversing the decrees of the lower Courts and awarding the plaintiff's claim, with costs throughout.


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