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Gopi Nath and ors. Vs. Ishri Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All631
AppellantGopi Nath and ors.
Respondentishri Prasad
Excerpt:
act no. iii of 1877 (indian registration act), section 50 - registration--mortgage--priority between registered and unregistered deeds. - - it must be clearly noted here, that though bindraban purchased at the auction sale the right, title and interest of his mortgagors, what was sold to ishri prasad by the heir of bal kishan was the full right of ownership and not the mere right, title and interest of the transferor......and not the mere right, title and interest of the transferor. an examination of ishri prasad's sale-deed makes this clear. that sale-deed was registered. ishri prasad's vendor was the full owner if the mortgage of the 21st of august, 1894, was out of the way, but we may assume for the purposes of this appeal that the vendor legally owned only the property subject to that mortgage; what he purported to sell, was the full right of ownership. in this way he may or may not have acted dishonestly, but there is nothing to show that ishri prasad had any notice whatever of the pre-existing unregistered mortgage. the prior mortgagee brought the present suit for sale out of which this appeal has arisen.2. in defence, ishri prasad pleaded section 50 of the registration act and urged that his.....
Judgment:

Richards, C.J., and Tudball, J.

1. Ram Bakhsh and Ors. mortgaged certain property to the present respondents on the 21st of August, 1894. On the 30th of May, 1896, they mortgaged the same property to Bindraban. Both mortgage-deeds were unregistered. Bindraban brought a suit for sale on his mortgage and purchased the property himself in execution of his decree. His son sold the property to Bal Kishan. The latter's heir sold it to Ishri Prasad, the present appellant. It must be clearly noted here, that though Bindraban purchased at the auction sale the right, title and interest of his mortgagors, what was sold to Ishri Prasad by the heir of Bal Kishan was the full right of ownership and not the mere right, title and interest of the transferor. An examination of Ishri Prasad's sale-deed makes this clear. That sale-deed was registered. Ishri Prasad's vendor was the full owner if the mortgage of the 21st of August, 1894, was out of the way, but we may assume for the purposes of this appeal that the vendor legally owned only the property subject to that mortgage; what he purported to sell, was the full right of ownership. In this way he may or may not have acted dishonestly, but there is nothing to show that Ishri Prasad had any notice whatever of the pre-existing unregistered mortgage. The prior mortgagee brought the present suit for sale out of which this appeal has arisen.

2. In defence, Ishri Prasad pleaded Section 50 of the Registration Act and urged that his registered sale-deed took effect as regards the property comprised therein against the unregistered mortgage-deed of the plaintiff w related o the same property. The court of first instance upheld this plea and dismissed the suit. The lower appellate court reversed that decision and decreed the suit. On second appeal to this Court, the learned Judge who heard the appeal confirmed the decree of the court below hence this appeal under the Letters Patent.

3. It is urged before us and with great force, that our learned brother has taken a wrong view of the facts of the case. The argument in his judgment is that what wad mortgaged to Bindraban was the equity of redemption ; and this is what Bindraban purchased, and what his son sold to Bal Kishan, and what Bal Kishan's heir transferred to Ishri Prasad; and as the latter only purchased equity of redemption, the two deeds do not cover the same property and, therefore, Section 50 of the Act does not apply. Reliance was placed on the decision in Sobhagchand Gulabchand v. Bhai-chand (1882) I.L.R. 6 Bom 193. The error in the above is patent on an examination of sale-deed in favour of Ishri Prasad. That deed does not purport to transfer only the right, title and interest of the transferor, but is, in plain terms, a sale, out and out, of the full right of ownership in the property. The mortgage in the present suit is a mortgage of the same property.

4. The two deeds, therefore, do cover the same property and Section 50 of the Act does apply.

5. There can be no question that if the original mortgagors had executed the two deeds now in conflict, the sale-deed being registered would take effect against the unregistered mortgage-deed, even though, after the execution of the latter, the mortgagors would have been the owners of only the equity of redemption.

6. The rights of the mortgagors were acquired by the appellant's vendor, but he sold to the appellant not the equity of redemption but the property itself. In principle there is no difference.

7. We would call attention to the remarks of Melville, J., in I.L.R., 6 Bom., 193, to be found at page 208, and which were quoted with approval by Airman, J., in Baldeo Prasad v. Baldeo Weekly Notes 1901 p. 112.

8. In the present case the 'estate' was covered by both the deeds in suit. The case is also covered by the un-reported decision in Ram, Lal v. Thakur Bachcha Singh S.A. No. 1148 of 1911 decided on the 13th June, 1912, (1912) Since reported, 10 A.L.J., 114.

9. We allow the appeal, set aside the decree of this Court and restore that of the court of first instance, with costs in all courts.


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