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Raghunath Sadashiv Thakur Vs. Dadaji Shamrao Thakur and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in70Ind.Cas.423
AppellantRaghunath Sadashiv Thakur
RespondentDadaji Shamrao Thakur and anr.
Excerpt:
mortgage - property mortgaged not belonging--to mortgagor--mortgagee's remedy--transfer of properly act (iv of 1882), section 66, application of. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 'as to the 5th issue, the plaintiff clearly states he has no evidence to show that the defendants practised fraud on him. he said that he had inspected the properties and was satisfied that they were good security he did not call for title-deeds because the..........- should be ordered to substitute other property than that mentioned in the plaint, and that the suit property should be ordered to be sold, and that any balance due should be made recoverable personally from the defendants. further, the plaintiff also asked that if the court should be of opinion that no suit was necessary, then the court should treat this as an application under various sections and rules of the code, or under any other law that might be applicable. the judge of the trial court was fight in saying that the plaint was framed in such equivocal language and contained so many unnecessary repetitions, that it had been a puzzle to. that court to find out what relief the plaintiff exactly sought.3. on the evidence on issue no. 5--'does the plaintiff show that defendants.....
Judgment:

1. This is a suit of a most peculiar nature. The plaintiff was the mortgagee under a registered mortgage for Rs. 400, dated 19th May 1901, whereby certain lands at Mhapan were mortgaged. The plaintiff filed Suit No. 91 of 1915, and obtained a mortgage-decree, which was made absolute and transferred to the Collector for execution. When the Collector took up properties Nos. 3 and 6 for sale, it was found on inquiry that the area and assessment of property No. 3 was less, and that No. 6 did not belong to the defendants. The plaintiff thereupon made inquiry regarding the rest of the property mortgaged, and discovered that out of the property mortgaged only thikan No. 5 belonged to the defendants. Even that thikan has not been included altogether. The plaintiff accordingly found himself in a very unfortunate position.

2. If the facts set out above are correct, the plaintiff had a claim to recover damages in an action for deceit against the mortgagor for mortgaging properties which did not belong to him. Instead of filing such an action, the plaintiff filed the present suit asking for the amendment of the decree in Suit No. 91 of 1915, and that the defendants - should be ordered to substitute other property than that mentioned in the plaint, and that the suit property should be ordered to be sold, and that any balance due should be made recoverable personally from the defendants. Further, the plaintiff also asked that if the Court should be of opinion that no suit was necessary, then the Court should treat this as an application under various sections and rules of the Code, or under any other law that might be applicable. The Judge of the Trial Court was fight in saying that the plaint was framed in such equivocal language and contained so many unnecessary repetitions, that it had been a puzzle to. that Court to find out what relief the plaintiff exactly sought.

3. On the evidence on issue No. 5--'Does the plaintiff show that defendants fraudulently misdescribed the property at the time of the mortgage' the Judge said: 'As to the 5th issue, the plaintiff clearly states he has no evidence to show that the defendants practised fraud on him. He said that he had inspected the properties and was satisfied that they were good security he did not call for title-deeds because the defendants were his bhaubands. From this it is clear that the defendants did not deceive the plaintiff but that the latter was guilty of gross negligence in not looking after his interests. His plea that he is ignorant is not tenable, for, he is an educated man and knows that proper inquiries have to be made when transactions of this nature have to be entered: into. He has himself purchased other lands and made inquiries into title; his failure to do so in this case does not entitle him to charge the defendants with fraud. But his allegation entirely falls through when he clearly admits that before the execution of the mortgage he was aware that the lands mortgaged did not belong to them. In, the circumstances, I hold that the plaintiff has totally failed to prove fraud by the defendants.' But we doubt very much really whether on the pleadings any issue of fraud was relevant.

4. In appeal the plaintiff met with no further success, and it seems to us that a more hopelessly misconceived suit could not possibly have been imagined. We have been urged to apply Section 68 of the Transfer of Property Act. But that section has nothing whatever to do with the case. It deals with the right of the mortgagee to sue for the mortgage-money, and especially in the case where by any cause other than the wrongful act or default of the mortgagor or mortgagee the mortgaged property has been wholly or partialis' destroyed, or the security is rendered insufficient as defined in Section 66, the mortgagee may require the mortgagor to give him within a reasonable time another sufficient security for his debt, and, if the, mortgagor fails so to do, may sue him for the mortgage-money.

5. It is suggested that owing to misdescription in the mortgage-deed the security has been rendered insufficient, That may be Correct, but it is not insufficient as defined in Section 66 which deals with waste by the mortgagor in possession, and accordingly has nothing whatever to do with the present situation with regard to the land which the plaintiff thought he had got in mortgage.

6. If there has been any misdescription of the property actually mortgaged in the mortgage-deed, which again had been embodied in the mortgage-decree, then, no doubt, on all application to the Court which passed the decree, the mortgagee may be able to satisfy the Court that there really was a clerical error in the mortgage, and, therefore, as the mortgage was merged in the decree, he may get the Court to amend the decree.

7. But, as we understand the case, it is not a case of misdescription but a case of inclusion in the mortgaged property of property not belonging to the mortgagor. As we have endeavoured to point out, it would follow that, as far as that property was concerned, it was not security for the mortgage-debt, as it belonged to a third party, and, therefore, must be considered as non-existent for the purpose of mortgage and the only remedy the mortgagee would have against the mortgagor for having inserted in the details of the mortgaged 'property property which did not belong to him, would be an action in deceit. The appeal fails and must be dismissed with costs.


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