Skip to content


Mango Lal Vs. Muhammad Baqar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All90
AppellantMango Lal
RespondentMuhammad Baqar
Excerpt:
limitation - act no. xv of 1877 (indian limitation act), schedule ii, article 120--suit by auction purchaser of mortgaged property to cancel a perpetual lease granted by the mortgagor in contravention of a covenant in the mortgage. - .....also the suit brought was beyond time.7. the learned judge held that the article which governs the suit was article 120 and the right to sue did not accrue to the plaintiff until he purchased the property in august 1894. in support of his judgment i have been referred to the case of pachamuthu v. chinnappan (1887) i.l.r. 10 mad., 213. the difficulty about applying that precedent is that in that suit there was no prayer that the deed which prejudiced the plaintiff's title might be cancelled or set aside. i was also referred to the case of uma shankar v. kalka prasad (1883) i.l.r. 6 all. 75. this is more in point, for the relief claimed by the plaintiffs was proprietary possessions by establishment of ownership and by removal of the defendants' opposition based on the collusive mortgage......
Judgment:

Knox, Atg. C.J.

1. The suit out of which this second appeal arises was brought by one Mango Lal, who is now respondent, on the basis of a bond executed by Fazal Husain the bond is said to have been executed on the 1st of July 1889, in favour of the predecessor in interest of the plaintiff, and to have been followed by a second bond executed by the same person and in favour of the same ancestor of the plaintiff on the 26th of January 1890, a suit was brought upon these bonds, and a decree obtained for the enforcement of the hypothecation lien on the 28th of March 1891. The plaint in that case was filed by the father of the present plaintiff. He died before the close of the suit. The plaintiff and his brother obtained a decree under Section 89 of Act IV of 1882, on the 25th of June 1892, and in execution of the decree the entire hypothecated property was brought to sale. The plaintiff purchased the property when it was put up for sale, and the date of his purchase was the 20th of August 1894.

2. It appears that on the 7th July 1890, Fazal Husain executed a perpetual lease in respect of a portion of the hypothecated property in favour of Muhammad Baqar.

3. The plaintiff contends that the execution of this lease was in contravention of a covenant not to alienate, which was contained in the mortgage deed executed by Fazal Husain in favour of Bhagwan Das, and accordingly prays in this suit that the lease be declared null and void.

4. The date on which the cause of action accrued is entered in the plaint as November 1896, and is set out as being a decision which the Revenue Court gave against the plaintiff when he tried to realize rent from his tenants and found himself opposed by Muhammad Baqar.

5. The learned Judge found that the suit was within time and rejected the defence set up by the appellant that limitation barred the claim. He also found that the lease was in contravention of the covenant contained in the mortgage-deeds of 1889 and 1890, and granted the respondent the decree prayed for.

6. It is now contended before me in appeal that the suit is barred by limitation, as the article which applies is either Article 91 or 95 of the second schedule of Act No. XV of 1877. It is also contended that the respondent was aware of the lease on the 5th of July 1893, the date on which Mango Lal, plaintiff, in his defence filed by him in answer to a suit brought by one Musammat Saidunnissa, expressly made mention of this lease, and time began to run from that date; and lastly, that, even if Article 120 of the abovenamed schedule is the article which governs the case, then also time began to run from the date of the execution of the lease, the 7th of July 1890, and in this event also the suit brought was beyond time.

7. The learned Judge held that the article which governs the suit was article 120 and the right to sue did not accrue to the plaintiff until he purchased the property in August 1894. In support of his judgment I have been referred to the case of Pachamuthu v. Chinnappan (1887) I.L.R. 10 Mad., 213. The difficulty about applying that precedent is that in that suit there was no prayer that the deed which prejudiced the plaintiff's title might be cancelled or set aside. I was also referred to the case of Uma Shankar v. Kalka Prasad (1883) I.L.R. 6 All. 75. This is more in point, for the relief claimed by the plaintiffs was proprietary possessions by establishment of ownership and by removal of the defendants' opposition based on the collusive mortgage. The learned Judges in that case held that the suit was not for relief on the ground of fraud, but for possession of property by right of auction purchase. Similarly in the case before me the prayer is for a declaratory decree declaring and establishing the plaintiff's title, and also declaring that the lease of the 7th of July 1890 is null and void. I think the suit before me may be considered as one in which I should follow the principle laid down in the ruling just quoted of this Court. I find that my brother Aikman in Din Dial v. Har Narain (1893) I.L.R. 16 All. 73, had a similar point to decide, and held that the prayer for the cancelment of the deed, which was in the plaint before him, could be treated as merely incidental to the main relief asked. In the present case I too would treat the subsidiary prayer in the declaration prayed for as purely subsidiary. What the plaintiff wants is a declaration that the shadow cast upon his title may be dispersed. It is otherwise nothing to him whether the lease between Fazal Husain and Muhammad Baqar is or is not binding upon those who were parties to it. Accordingly, following it, I dismiss the appeal with costs.


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