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Lalman Vs. Mohar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All205
AppellantLalman
RespondentMohar Singh and ors.
Excerpt:
act no. iv of 1882 (transfer of property act), section 88 - mortgage--charge--suit for sale of property subject to a charge. - .....that the mortgaged property with other property is liable to a charge for maintenance in favour of musammat gulabi, namely, to the payment to her of rs. 40 per mensem. the learned subordinate judge dismissed the greater part of the claim on the ground that the property comprised in the mortgage, which was subject to the charge for maintenance, could not be sold in view of the decision of this court in the case of mata din kasodhan v. kazim husain (1891) i.l.r., 13 all., 432. in his judgment the learned judge treated the plaintiff as in the position of a subsequent mortgagee and held that, without redeeming what he described as the mortgage of musammat gulabi, the court could not direct the sale of the property. it appears to us that he was quite in error in treating musammat gulabi as a.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. This appeal arises out of a suit brought by the plaintiff appellant for sale of mortgaged property. It is admitted in the plaint that the mortgaged property with other property is liable to a charge for maintenance in favour of Musammat Gulabi, namely, to the payment to her of Rs. 40 per mensem. The learned Subordinate Judge dismissed the greater part of the claim on the ground that the property comprised in the mortgage, which was subject to the charge for maintenance, could not be sold in view of the decision of this Court in the case of Mata Din Kasodhan v. Kazim Husain (1891) I.L.R., 13 All., 432. In his judgment the learned Judge treated the plaintiff as in the position of a subsequent mortgagee and held that, without redeeming what he described as the mortgage of Musammat Gulabi, the Court could not direct the sale of the property. It appears to us that he was quite in error in treating Musammat Gulabi as a mortgagee. She has only a charge upon the property for maintenance and is not a mortgagee, and the decision, therefore, in Mata Din Kasodhan v. Kazim Husain has no application. We therefore allow the appeal, and in lieu of the decree passed by the learned Subordinate Judge, give a decree to the plaintiff for the amount of his claim. 'We extend the time for payment of the mortgage debt up to the 22nd of May next. In default of payment we give a decree for sale of the mortgaged property, the sale to be made subject to the charge for maintenance of musammat Gulabi. We direct that the decree be drawn up in the form prescribed by Section 88 of the Transfer of Property Act. In other respects the decree will stand. The plaintiff appellant will have the costs of this appeal as against the mortgagors, the same to be added to the mortgage debt.


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