Skip to content


Mazhar HusaIn and ors. Vs. Nidhi Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All436
AppellantMazhar HusaIn and ors.
RespondentNidhi Lal
Excerpt:
mortgage - transfer of mortgaged property by mortgagee in exchange for similar property--right of mortgagor to property acquired by exchange. - .....and it was arranged that the municipality should purchase the shops before-mentioned from the mortgagee in possession, and give him for it rs. 50 in cash, as half of the price, and, as representing the other half, a site for another shop in the new market. it was apparently arranged between the mortgagor and the mortgagee that they should join in transferring the old site to the municipality. the mortgagee received the rs. 50 in cash, and obtained possession of six shops in the new market. the representative of the mortgagor now brings the present suit, in which he claims to obtain possession by redemption of one of these six shops upon payment of rs. 275, this sum including rs. 75 on account of the mortgage-debt, and rs. 200 on account of expenses incurred by the mortgagee in,.....
Judgment:

W. Comer Petheram, C.J.

1. I think that this appeal must be allowed. The action is brought by persons who stand in the position of mortgagors against a mortgagee, and its object is the redemption of the mortgage. The facts are that, in 1863, the ancestor of the plaintiffs was in possession of three shops in the old market-place of Etawah, and that one of these was given under a usufructuary mortgage to the defendant, Nidhi Lal, to secure a debt of the value of Rs. 75, and it was agreed that the mortgagee should get the rent of the shop by way of interest. This was the state of things existing in 1865, when the Municipality elected to destroy the old market and to build a new one, and, under these circumstances, it was necessary to compensate-the owners of the shops which were destroyed, and it was arranged that the Municipality should purchase the shops before-mentioned from the mortgagee in possession, and give him for it Rs. 50 in cash, as half of the price, and, as representing the other half, a site for another shop in the new market. It was apparently arranged between the mortgagor and the mortgagee that they should join in transferring the old site to the Municipality. The mortgagee received the Rs. 50 in cash, and obtained possession of six shops in the new market. The representative of the mortgagor now brings the present suit, in which he claims to obtain possession by redemption of one of these six shops upon payment of Rs. 275, this sum including Rs. 75 on account of the mortgage-debt, and Rs. 200 on account of expenses incurred by the mortgagee in, re-constructing the mortgaged property.

2. I hold that, upon the facts which I have stated, no real inference of law arises, and I know of no authority and of no principle of law which could justify the contrary opinion.

3. If any such inference did arise, it could only do so from some agreement binding upon the parties at the time when the transaction occurred; that is, an agreement that one of the new shops should take the place of the old one, which was the subject of the mortgage. But neither the Court of First Instance nor the Lower Appellate Court has found that any agreement of the kind in fact was made. It has been suggested that we should remit an issue for the ascertainment of the question. But I do not think that we ought to do so. It would afford a temptation to the parties to concoct a case, and, if they did so any finding arrived at by the Court below would be contrary to the evidence. It would be necessary for the Court to find that there was an agreement substituting, not merely some one of the six new shops for the old one, but some specific shop for it; because a mortgagor cannot claim to redeem a property which is uncertain. He must know what it is that he desires to redeem; and I regard this case as a mere vague attempt by the mortgagor to get hold of some shop or other, without knowing or caring which one out of the six it is to be. I am therefore of opinion that the appeal should be decreed, the decree of the Courts below reversed, and the suit consequently dismissed with costs.

Straight, J.

4. I am of the same opinion.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //