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Baldeo Prasad Shukul and anr. Vs. Mahabir Prasad Misir - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.99
AppellantBaldeo Prasad Shukul and anr.
RespondentMahabir Prasad Misir
Excerpt:
transfer of property act (iv of 1882), section 101 - mortgage--mortgagee purchasing right of mortgagor at auction sale--extinguishment of mortgagee's right. - - primarily in a case like the present when the mortgagee becomes the owner of the property incumbered, the charge or incumbrance is extinguished. in my opinion under the circumstances, the charge or incumbrance is clearly extinguished and it is not open to the plaintiffs to enforce it......the nature of the plea therein. there can be no doubt that the present plaintiffs sought by that suit possession as full owners of the property, the full right of ownership of which had vested in them. they were then entitled to put forward the complete owner-ship of the property and they chose to do so. if it had been their intention at that time or any time before it to keep their incumbrance alive, they could scarcely have brought their suit for possession as they brought it in 1905. it seems to me by necessary implication from the fact of that suit that they did not intend to keep that charge alive. neither, in my opinion, can it be said that the continuance of the charge was at all for the benefit of the plaintiffs in the circumstances of the present case. they were the mortgagees.....
Judgment:

Tudball, J.

1. This appeal arises out of the following circumstances. The defendant-respondent mortgaged certain property to the plaintiffs-appellants or their predecessors entitle. The mortgage was a simple one. Subsequently to the mortgage, the property was attached in execution of some body else's decree and was put up to sale on the 20th of July 1893. It was purchased by the mortgagees. They, however, though they obtained a certificate of sale, were kept out of possession. They, on the 12th of July 1905, i.e., within 12 years, brought a suit to obtain possession of the property. An examination of the plaint shows that they sought to obtain possession as full owners and, as the facts are stated before me, they 'were' full owners and entitled to possession. The suit was, however, dismissed on the 5th of December 1905 by reason of the plaintiffs' default. They subsequently applied to the Court for re-hearing but that application was also disallowed. They have now brought on the 29th of July 1910 the suit, out of which this appeal has arisen, seeking to recover the mortgage-debt by sale of the mortgaged property. The first Court decreed the claim, but the lower Appellate Court has dismissed the suit. The plaintiffs came here on second appeal. The argument on their behalf is two fold, firstly, that what they purchased at the auction sale was the equity of redemption and what they sought by the former suit was the equity of redemption, and that what they lost by adverse possession is simply the equity of redemption and that the mortgagee right still subsists in them. The nest plea is that the mortgage must be deemed to continue to subsist as it was for their benefit that it should subsist. It seems to me quite clear that the point is covered by Section 101 of the Transfer of Property Act. Primarily in a case like the present when the mortgagee becomes the owner of the property incumbered, the charge or incumbrance is extinguished. Next, one has to see whether the owner of the incumbrance has denoted his intention by express words or by some action on his part to keep his prior charge or incumbrance alive. If there is no express declaration or necessary implication, one has to see whether the continuance of the charge would be for his benefit. Applying the section to the facts of the present case, it would appear that there was no express declaration on the part of the mortgagees. But one cannot set apart entirely the suit that was brought in 1905 and the nature of the plea therein. There can be no doubt that the present plaintiffs sought by that suit possession as full owners of the property, the full right of ownership of which had vested in them. They were then entitled to put forward the complete owner-ship of the property and they chose to do so. If it had been their intention at that time or any time before it to keep their incumbrance alive, they could scarcely have brought their suit for possession as they brought it in 1905. It seems to me by necessary implication from the fact of that suit that they did not intend to keep that charge alive. Neither, in my opinion, can it be said that the continuance of the charge was at all for the benefit of the plaintiffs in the circumstances of the present case. They were the mortgagees and they had acquired the rights of the mortgagor. Their benefit lay in enforcing their full right and in extinguishing their charge. It has nowhere been stated that the property which was purchased by them was valueless. Their benefit lay in enforcing their full right and putting aside the charge, and the fact that they sued in 1905 is a clear indication what they deemed to be for their benefit. In my opinion under the circumstances, the charge or incumbrance is clearly extinguished and it is not open to the plaintiffs to enforce it. The appeal is dismissed with costs including fees on the higher scale.


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