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Baldeo Prasad and anr. Vs. Jagat Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1921)ILR43All137
AppellantBaldeo Prasad and anr.
RespondentJagat Singh and anr.
Excerpt:
pre-emption - valuation of property the subject of a claim for pre-emption--property subject to a mortgage--personal remedy barred and mortgage debt in excess of market value. - - we agree with the argument raised on behalf of the appellant that the vendee is entitled to recover from the pre-emptor the full amount that he has in good faith actually paid for the property purchased, but we haw to see what the appellant vendee did in the present case actually pay. the value of the debt due on the bond is clearly limited to the value of the property in question......record, was not the owner of any other property. the vendee gave him rs. 100 in cash and took a sale deed of the property ostensibly for a sum of rs. 3,000 and cancelled the mortgage deed. a pre-emptor at once arose, and the court below has given him a decree for pre-emption on condition that he should pay rs. 1,250, the market value of the property.2. it is urged before us that the vendee is entitled to recover the full sum of rs. 2,568, that being the amount of the mortgage debt plus the rs. 100 paid in cash. we agree with the argument raised on behalf of the appellant that the vendee is entitled to recover from the pre-emptor the full amount that he has in good faith actually paid for the property purchased, but we haw to see what the appellant vendee did in the present case.....
Judgment:

Tudball and Sulaiman, JJ.

1. The sole point in this appeal which has been argued before us is the question of consideration. The vendor owned property, the market value of which was Rs. 1,250. He had borrowed from the vendee appellant a Bum of Rs. 800 many years ago and had hypothecated this property as security. At the time that, this sale was transacted the debt due on the mortgage was. Rs. 2,468. The personal remedy against the mortgagor bid vanished by lapse of time. Therefore, this sum of Rs. 2,468 could only have been paid by the sale of the property. The vendor was unable to pay the debt and, as far as we can judge from the record, was not the owner of any other property. The vendee gave him Rs. 100 in cash and took a sale deed of the property ostensibly for a sum of Rs. 3,000 and cancelled the mortgage deed. A pre-emptor at once arose, and the court below has given him a decree for pre-emption on condition that he should pay Rs. 1,250, the market value of the property.

2. It is urged before us that the vendee is entitled to recover the full sum of Rs. 2,568, that being the amount of the mortgage debt plus the Rs. 100 paid in cash. We agree with the argument raised on behalf of the appellant that the vendee is entitled to recover from the pre-emptor the full amount that he has in good faith actually paid for the property purchased, but we haw to see what the appellant vendee did in the present case actually pay. He gave up the debt clue on the bond plus Rs. 100 for the property. The value of the debt due on the bond is clearly limited to the value of the property in question. Nobody would have given to the vendee a price for his mortgage debt greater than the security afforded by the property. Just as a time-barred debt is practically of no value, so a mortgage debt where the personal remedy is barred cannot be greater in value than the security itself. No one in the open market would have given the appellant anything more than Rs. 1,250 for his mortgage debt. It, therefore, is clear that the amount which the appellant paid for the property is not the amount which was due on the face of the mortgage deed but the amount which was recoverable under the bond from the security. Nothing more than the market value of the property could have been recovered. We, therefore, think that the decision of the lower court was quite correct. The defendant appellant, when he has received payment of Rs. 1,250, the market value of the property, will be in exactly the same position as be stood after the execution of the sale-deed. On the execution of that deed the mortgage debt was cancelled and the appellant stood possessed of property to the value of Rs. 1,250. The appeal, therefore, fails and is dismissed with costs.


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