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Shambhu Nath and ors. Vs. Durga Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All86
AppellantShambhu Nath and ors.
RespondentDurga Prasad
Excerpt:
mortgage - suit by mortgagee for possession of the mortgaged property--sale of mortgaged property by mortgagor--pre-emption--purchaser for value without notice--adverse possession--act xv of 1877 (limitation act), schedule ii, no. 144. - - 3. it has been contended that raghobar, who obtained the property by asserting a right of pre-emption by suit, is in a better position than an ordinary purchaser by a private sale, and has a position analogous to that of a purchaser at an execution-sale; 5. there is no equitable ground why the plaintiff's right under the mortgage should be defeated by the defendant's purchase......against the mortgagors was kept alive. the mortgagors, however, on the 7th october 1869, sold the mortgaged property in suit to one bansidhar. one raghobar brought a suit in respect of the sale to enforce pre-emption and obtained a decree in his favour and got the property; and he made a sale of it on the 20th april 1871, to the defendant in this suit.2. the plaintiff-mortgagee has now brought this suit against the defendant to obtain possession under his mortgage. the suit was instituted on the 17th march 1983. his claim has been decreed, and the material question in appeal is, whether the defendant can successfully plead limitation against the plaintiff.3. it has been contended that raghobar, who obtained the property by asserting a right of pre-emption by suit, is in a better.....
Judgment:

Oldfield and Brodhurst, JJ.

1. Kunj Behari and Musammat Tejo mortgaged the property in suit by a registered deed, dated 29th May 1869, to the plaintiff. Under the deed the plaintiff had a right to immediate possession: by arrangement, however, between the mortgagors and mortgagee, the former remained in possession. The right, however, of the plaintiff to obtain possession as against the mortgagors was kept alive. The mortgagors, however, on the 7th October 1869, sold the mortgaged property in suit to one Bansidhar. One Raghobar brought a suit in respect of the sale to enforce pre-emption and obtained a decree in his favour and got the property; and he made a sale of it on the 20th April 1871, to the defendant in this suit.

2. The plaintiff-mortgagee has now brought this suit against the defendant to obtain possession under his mortgage. The suit was instituted on the 17th March 1983. His claim has been decreed, and the material question in appeal is, whether the defendant can successfully plead limitation against the plaintiff.

3. It has been contended that Raghobar, who obtained the property by asserting a right of pre-emption by suit, is in a better position than an ordinary purchaser by a private sale, and has a position analogous to that of a purchaser at an execution-sale; and that his possession was not as mortgagor and in acknowledgment of the continuance of the title of the mortgagee, but as absolute owner: and his possession and subsequent possession of defendant will be adverse to the right of the mortgagee, and the suit barred by limitation; and we are referred to the case of Anundoo Moyee Dossee v. Dhonendro Chunder Mookerjee 14 Moo. I.A. 101 : 8 B.L.R. 122. The position however, of a person who purchases property by asserting a right of pre-emption is not, in our opinion, analogous to that of an auction-purchaser in execution of a decree. He merely takes the place of the original purchaser and enters into the same contract of sale with the vendor that the purchaser was making. There is privity between him and the vendor, and be comes in under the vendor, and his holding must be taken to be in acknowledgment of all obligations created by his vendor. The case of Anundoo Moyee Dossee 14 Moo. I.A. 101 : 8 B.L.R. 122, is therefore not applicable. Moreover, that case was not governed or decided under the present Limitation Act. Article 144, Act XV of 1877, is the law which governs this case; and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. There is nothing to show--and it is not pretended--that until recently, when the present dispute arose, there were any conflicting claims in respect of the mortgage from which the assertion of an adverse title on the defendant's part against the plaintiff can be gathered, so as to make his possession adverse. The lower Courts have further held that the defendant-appellant had constructive notice of the mortgage by reason of the instrument being registered. This is a question which need not be discussed. It would be material to show that the defendant had in any way by fraud been kept out of knowledge of the mortgage; but his not having notice of it otherwise will not affect his liability.

4. The principle on which Courts of Equity in England refuse to interfere against bond fide purchasers for a valuable consideration, without notice, when clothed with the legal title, has no applicability in our Courts.

5. There is no equitable ground why the plaintiff's right under the mortgage should be defeated by the defendant's purchase. It has priority; and if the defendant had no notice, it will not affect the plaintiff, who was not responsible for that.

6. The appeal is dismissed with costs.


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