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Mayashankar Mulshankar Vs. Burjorji Meewanji Batlivala - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Appeal from Order No. 22 of 1924
Judge
Reported inAIR1926Bom31; (1925)27BOMLR1449
AppellantMayashankar Mulshankar
RespondentBurjorji Meewanji Batlivala
DispositionAppeal dismissed
Excerpt:
mortgage - redemption-partial redemption by part-owner of equity of redemption-mortgagee releasing a, portion of property from mortgage.;the mortgagor-owner of a part of the equity of redemption is at liberty i' to sue for part redemption of the mortgage when the mortgagee has by i his own act released a portion of the property from his mortgage.;imam ali v. baij nath ram sahu (1906) i.l.r. 33 cal. 613 followed. - - that act is not exhaustive and this court as a court of equity is entitled to administer the principles of equity as laid down in decided cases which are not distinctly prohibited by statute.norman macleod, kt., c.j.1. this suit was one for part redemption by an assignee of a part of the mortgaged property. on july 22, 1914, defendant no. 3 executed a mortgage in favour of defendants nos. 1 and 2 for a principal sum of rs. 17,500 and interest, the properties mentioned in the mortgage deed were: (1) four parcels of bhandup land; (2) 8116 square yards of kanjur land; and (3) some interest of the mortgagor in certain property at pare].2. on october 27, 1915, defendant no. 3 by a registered deed gave the four parcels of bhandup land included in the above mortgage to the plaintiff in exchange for certain other lands of bhandup received from him.3. on october 20,1918, the first and second defendants, the mortgagees, brought a suit on their mortgage against defendant no. 3 alone,.....
Judgment:

Norman Macleod, Kt., C.J.

1. This suit was one for part redemption by an assignee of a part of the mortgaged property. On July 22, 1914, defendant No. 3 executed a mortgage in favour of defendants Nos. 1 and 2 for a principal sum of Rs. 17,500 and interest, The properties mentioned in the mortgage deed were: (1) four parcels of Bhandup land; (2) 8116 square yards of Kanjur land; and (3) some interest of the mortgagor in certain property at Pare].

2. On October 27, 1915, defendant No. 3 by a registered deed gave the four parcels of Bhandup land included in the above mortgage to the plaintiff in exchange for certain other lands of Bhandup received from him.

3. On October 20,1918, the first and second defendants, the mortgagees, brought a suit on their mortgage against defendant No. 3 alone, and on July 8, 1918, obtained a preliminary decree for Rs. 19,462-9-3 together with interest. In that suit they included as mortgaged properties five parcels of Bhandup land, four being those mentioned in the deed and since transferred to the plaintiff, the fifth being a wholly different one which the plaintiff alleged had belonged to him in an independent right. Instead of 3116 square yards of Kanjur land they included another piece of 5954 square yards which also the plaintiff alleged belonged to him in an independent right, and they mentioned also the Parel property.

4. It does not appear that anything further was done after the preliminary decree. The plaintiff then claimed that as he was the owner of the equity of redemption of a portion of the mortgaged property, he was entitled to redeem that portion on paying a proportion of the amount of the mortgage money, because the mortgagee by his own action had released some of the mortgaged property from the mortgage. The trial Court ordered that the plaintiff should within seven days amend the plaint by making it a general suit for redemption of the whole property on payment of the whole mortgage amount that might be found due.

5. On appeal the Joint Judge held that a certain principle of equity must be applied which acts in favour of a mortgagor owner of a part of the equity of redemption of mortgaged properties when the mortgagee bas acted in such a way as to release a portion of the property from the mortgage deed. This principle has been laid down in Imam Ali v. Baij Nath Ram Sahu I. L. R.(1906) Cal. 613 the judgment proceeds :-

It appears to be clear that a mortgagee cannot release from his claim a portion of the properties comprised in his security so as to prejudice the rights o others, who might have already acquired an interest in the Unrelated portion. As pointed out by this Court in the cases of Surjiram v. Barhamdeo (1905) 1 C. L. J. 337 and Surjiram v. Barhamdeo (1906) 2 C. L. J. 202 it is not open to a mortgagee to throw the burden of the entire debt upon a portion only of the mortgaged property and release the remainder... The purchasers of the properties not released are entitled to insist that not more than a proportionate share of the mortgage debt shall be levied upon the properties in their hands.

6. That case was followed by this Court in Budhmal Kevatchand v. Rama valad Yesu I. L. R. (1819) 44 Bom. 823. There the property in suit was mortgaged to plaintiff. Subsequent to the date of the mortgage, the equity of redemption was purchased in equal half shares by two out of the three parties, The plaintiff sued to recover the entire mortgage debt by sale of half of the mortgaged property in the hands of one of them without adding the other as a party. It was held that it was contrary to the principles of equity that the plaintiff who by his own negligence had lost his remedy against the owner of half of the equity of redemption, should seek to throw the whole burden of the mortgage on the owner of the other half.

7. In this case if the plaintiff could only redeem the property of which he is now the mortgagor by payment of the whole of the mortgage debt in satisfaction of the mortgage decree, he would only recover from the mortgagee a part of the properties mortgaged and not the whole, because by virtue of his decree the mortgagee could only execute his decree against the properties mentioned therein, It makes no difference whether that mistake was deliberate or intentional, and it makes no difference that the present case is not contemplated by any of the provisions of the Transfer of Property Act. That Act is not exhaustive and this Court as a Court of equity is entitled to administer the principles of equity as laid down in decided cases which are not distinctly prohibited by statute.

8. We think the Joint Judge was right in his conclusion, and we dismiss the appeal with costs.


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