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Muhammad Hamid-ud-dIn Vs. Shib Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All309
AppellantMuhammad Hamid-ud-din
RespondentShib Sahai and ors.
Excerpt:
mortgage - sale of mortgaged property under a decree other than a decree on the mortgage--mortgage not disclosed--effect of such non-disclosure on mortgagee's rights under his mortgage--estoppel. - .....indeed proof of knowledge at any time subsequent to the sale will be no proof of knowledge at the time of sale. our attention has been called to two cases which seem to us accurately in point. the case of agar chand guman chand v. rakhma hanmant (1888) i.l.r. 12 bom., 678, and the case of dullab sirkar v. krishna kumar bakshi (1869) 3 b.l.r. 407, in those oases it was held that a decree-holder who, having a prior incumbrance, puts up for sale in execution of another decree such property without notifying that he has such a lien, is estopped for ever from setting up that lien against the title of a bond fide purchaser. those rulings are not merely an authority, but they are founded upon elementary principles of equity. it is manifest in this case that the sale of the property as.....
Judgment:

Blair and Burkitt, JJ.

1. This first appeal arises out of a suit in which one Hamid-ud-din claims possession of a 21/2 biswa share in certain muafi land and two sihams out of 40 sihams of mauza Mahesra. He also claims a declaration of his right and title to three sihams of the same milk in the possession of mortgagees. In 1871, Harsahai, the ancestor of the present defendants, brought a suit upon a hypothecation bond of 1865 and got a decree in 1871. In the year 1872 he obtained decrees upon two other hypothecation bonds. The decree of 1871 was a decree upon a bond given by one of two brothers in which he hypothecated a 5 biswa share in mauza Mahesra. The bonds upon which the decrees were obtained in 1872 were bonds executed by both brothers hypothecating the same shares. The decrees of 1872 were first put into execution and one-half of the hypothecated property was sold, the price of that half satisfying the two decrees. In 1879 Harsahai attached and sold in execution of a money decree the 21/2 biswas which remained unsold upon the execution of the previous decrees and purchased them himself in the name of his son. He then proceeded to put into execution the decree of 1871, and in execution of that decree a proclamation of sale was made, and he put up for sale and himself purchased the one-half of the property which had been sold under the decree of 1872. The purchaser under the decree of 1872 is the plaintiff here. He now seeks to recover possession of that two-and-a-half biswas. It has been contended on behalf of the appellant that the Subordinate Judge has wrongly found against him upon two issues fatal to his case. He has found first of all, that his claim is barred by limitation, the defendant having been in possession of the property for more than twelve years. He has also found that the plaintiff, when he purchased the shares at the sale of 1872, had notice of the decree of 1871 held by Harsahai. The finding of limitation is apparently based upon no evidence, and such evidence as we have before us shows that within the period of twelve years the defendants have filed a suit in which they allege dispossession of themselves. That suit was filed against the present plaintiff for the profits he had, as was alleged, received during the period of such dispossession. Upon the question of notice, we find that the Judge relies upon evidence of certain payments made at a period years after the sale for satisfaction of some lien. It has been shown to us to demonstration by documents on the record that such payments did not refer to the lien of Harsahai, the right to enforce which is disputed in the present suit; and indeed proof of knowledge at any time subsequent to the sale will be no proof of knowledge at the time of sale. Our attention has been called to two cases which seem to us accurately in point. The case of Agar Chand Guman Chand v. Rakhma Hanmant (1888) I.L.R. 12 Bom., 678, and the case of Dullab Sirkar v. Krishna Kumar Bakshi (1869) 3 B.L.R. 407, In those oases it was held that a decree-holder who, having a prior incumbrance, puts up for sale in execution of another decree such property without notifying that he has such a lien, is estopped for ever from setting up that lien against the title of a bond fide purchaser. Those rulings are not merely an authority, but they are founded upon elementary principles of equity. It is manifest in this case that the sale of the property as unincumbered was a mala fide sale and fraud upon all intending purchasers.

2. For these reasons we allow the appeal, set aside the decree of the Court below, and decree the suit of the plaintiff in terms of the prayer in the plaint, with costs.


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