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Kali Charan and anr. Vs. Ahmad Shan Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All48
AppellantKali Charan and anr.
RespondentAhmad Shan Khan
Excerpt:
mortgage - suit by second mortgagees against purchaser of equity of redemption who had paid off a prior mortgage--second mortgagees ignoring lien of purchaser of equity of redemption. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........had passed to him, and the further equity arising out of his payment of the money due under the prior mortgage by which it had become extinguished. by virtue of his equity of redemption he had become entitled to relieve the land of the plaintiffs' second mortgage by payment, and by this payment, which extinguished the first mortgage, he was entitled to protect himself against a suit for sale instituted by the plaintiffs upon their second mortgage, because such payment unquestionably gave him a right to have, in priority to them, satisfaction of his lien, as though he stood in the shoes of the first mortgagee. but it would be incorrect to say that he was ever a mortgagee. the plaintiffs in their suit impleaded the mortgagor and his assignee, but made no mention of the lien acquired by.....
Judgment:

Blair and Burkitt, JJ.

1. This is a suit by the holders of a second mortgage duly registered to recover by sale of the mortgaged property principal and interest due to them upon a bond executed in their favour by the second defendant. The first defendant and sole respondent here is the purchaser from the second defendant of the equity of redemption, and a certain amount of the purchase money was left with the vendee for the payment of a mortgage debt due under a mortgage of older d ate than that of the plaintiffs. It must be taken to be the fact that the plaintiffs had knowledge of such prior incumbrance. The second defendant by his purchase became full owner of the hypothecated land, subject to plaintiffs' mortgage; that is to say, the equity of redemption had passed to him, and the further equity arising out of his payment of the money due under the prior mortgage by which it had become extinguished. By virtue of his equity of redemption he had become entitled to relieve the land of the plaintiffs' second mortgage by payment, and by this payment, which extinguished the first mortgage, he was entitled to protect himself against a suit for sale instituted by the plaintiffs upon their second mortgage, because such payment unquestionably gave him a right to have, in priority to them, satisfaction of his lien, as though he stood in the shoes of the first mortgagee. But it would be incorrect to say that he was ever a mortgagee. The plaintiffs in their suit impleaded the mortgagor and his assignee, but made no mention of the lien acquired by defendant No. I. The Lower Appellate Court, reversing the decree of the Munsif, has refused on a plaint so drawn to allow the claim of the plaintiffs, subject to the repayment of the lien of defendant No. I, as decreed by the Munsif. The only question before us is whether upon account of the omission of all mention of the respondent's lien the suit ought to have been dismissed, although on a properly drawn plaint the plaintiffs would have been entitled to the decree given by the Munsif. Upon this preliminary point the plaintiffs' suit has been dismissed. The Lower Appellate Court acted upon the authority of the case of Salig Ram v. Har Charan Lal I.L.R. 12 All. 548. The head-note correctly sums up the ruling in that case: 'Where a second mortgagee coming into Court and denying or ignoring the title of a prior mortgagee asks to have the property sold as if there were no prior incumbrance, the suit should be dismissed, and should not be decreed with words of limitation reserving the rights of the prior mortgagee.' The ratio decidendi is thus expressed in the judgment: 'It is a suit brought on a false statement of facts or upon a suppression of material facts.' In that case the defendant had been mortgagee prior to his purchase of the equity, and, had such purchase never taken place, must necessarily have been impleaded by a second mortgagee suing his, mortgagor for enforcement of lien. The existence of such a mortgage must, have been known to the second mortgagee and the rights of the first mortgagor perfectly understood. But the rights of the purchaser of an equity of redemption who had never been a mortgagee at all, but had obtained a right by repayment to use the first mortgage as a shield, are much less generally known and understood Indeed the Munsif remarks that 'it is likely that the plaintiffs' knowledge of the prior incumbrances and of their discharge by the defendant-vendee caused to the plaintiffs doubt and uncertainty.' This case does not appear to us to fall strictly within the ruling above quoted, and we are unable to lay down, as a rule of universal application, the principle that a plaintiff who claims too much or fails to admit reasonable deductions from his claim' is therefore to be deprived of that to which he is legally entitled. It seems to us that each case should be dealt with on its own merits. We reverse the finding of the Lower Appellate Court on the preliminary point, and remand the case to that Court under a. 562 of the Code of Civil Procedure with directions to restore it to its place on the register of first appeals and dispose of it upon the merits. This appeal is decreed, with costs.


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