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Shiva Harakh Rai Vs. Akbar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1948All55
AppellantShiva Harakh Rai
RespondentAkbar Ali and ors.
Excerpt:
- - apart from the question that i do not think it can be said that there was any transfer of liability, the argument of learned counsel that the integrity of a mortgage was broken is clearly wrong......by certain transfers inter se akbar ali purchased the property of some of his other co-sharers.2. learned counsel for the appellant has urged that by reason of those purchases it must now be held that the liability for the repayment of the mortgage debt had, by contract, been transferred to another person. the position, in short, is that of the four persons liable under a mortgage, one has acquired the interest of some of the others. i do not see bow in such a case it can be said that the liability was transferred to another person. they were all jointly and severally liable for the debt and if one of them purchased the interest of the other debtors there was no question of a transfer of liability to a person who was not already liable.3. learned counsel has urged that the mortgagee had.....
Judgment:

Malik, J.

1. The facts of this case are complicated, but it is not necessary to set them out in any detail to understand the question of law involved in the case. Akbar Ali filed this suit for accounts on a usufructuary mortgage dated 24th June 1918. The mortgage was executed in favour of Shiva Harakh Rai and others by Walayat Husain. The mortgaged property had belonged to Walayat Husain, Hasan Raza, Akbar Ali and Asgar Ali. They brought a suit claiming that the mortgage was not binding on them. It was held in that suit that they were bound by that mortgage under Section 41, T.P. Act. The result of that decision was that all the four became liable under the mortgage. By certain transfers inter se Akbar Ali purchased the property of some of his other co-sharers.

2. Learned Counsel for the appellant has urged that by reason of those purchases it must now be held that the liability for the repayment of the mortgage debt had, by contract, been transferred to another person. The position, in short, is that of the four persons liable under a mortgage, one has acquired the interest of some of the others. I do not see bow in such a case it can be said that the liability was transferred to another person. They were all jointly and severally liable for the debt and if one of them purchased the interest of the other debtors there was no question of a transfer of liability to a person who was not already liable.

3. Learned Counsel has urged that the mortgagee had allowed Hasan Raza to redeem his share of the mortgage and he has urged that the integrity of the mortgage was therefore broken and every mortgagor became separately liable for his share of the mortgage debt. He has brought this in with the object of strengthening his argument that there was a transfer of liability where there was no liability before. Apart from the question that I do not think it can be said that there was any transfer of liability, the argument of learned Counsel that the integrity of a mortgage was broken is clearly wrong. Under Section 60, T.P. Act, the integrity of a mortgage is broken only if the mortgagees have acquired, in whole or in part, the share of a mortgagor. Learned Counsel has urged that the word 'only' was introduced by the Amending Act of 1929 and it has, therefore, no application to a case where the redemption was made prior to the year 1929. The point was considered by their Lordships of the Judicial Committee in Ram Chand v. Parbhu Dayal (29) A.I.R. 1942 P.C. 50 and it was held that even before the amendment the law was the same and the integrity of the mortgage was not broken. There was considerable difference of opinion before the amendment but the Madras High Court in Perumal Pillai v. Raman Chettiar 5 A.I.R. 1918 Mad. 1030 had taken the view which their Lordships have approved in Ram Chand v. Parbhu Dayal (29) A.I.R. 1942 P.C. 50. There is no force in this appeal and I dismiss it with costs.

4. Leave to appeal under the Letters Patent is refused.


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