Skip to content


Tara Chand and ors. Vs. Bachnun Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.492
AppellantTara Chand and ors.
RespondentBachnun Singh and ors.
Excerpt:
transfer of property act (iv of 1882), section 52 - lispendens--transfer of mortgage debt during pendency of partition suit--assignment invalid--immoveable property. - .....singh to one faqir chand. the latter died on november 13,1893, leaving him surviving musammat sone kuar, his widow and some nephews amongst whom was tara chand. on february 13, 1894, musammat sone kuar obtained a succession certificate under act vii of 1839. her application for the certificate was not opposed by the nephews of her husband. on january 10, 1901, tara chand, one of the nephews of faqir chand, instituted a suit for partition of the joint property making musammat sone kuar as one of the defendants in the case. on january 16th, 1901, musammat sone kuar-executed a deed of assignment in favour of babu ran bahadur singh in respect of the mortgage of january 6th, 1892. the assignee sued on foot of the mortgage and obtained a decree on november 10th, 1903. in execution of his.....
Judgment:

1. The facts which have given rise to the present appeal are as follows: On January 6th, 1892, a mortgage was given by Bechan Singh to one Faqir Chand. The latter died on November 13,1893, leaving him surviving Musammat Sone Kuar, his widow and some nephews amongst whom was Tara Chand. On February 13, 1894, Musammat Sone Kuar obtained a succession certificate under Act VII of 1839. Her application for the certificate was not opposed by the nephews of her husband. On January 10, 1901, Tara Chand, one of the nephews of Faqir Chand, instituted a suit for partition of the joint property making Musammat Sone Kuar as one of the defendants in the case. On January 16th, 1901, Musammat Sone Kuar-executed a deed of assignment in favour of Babu Ran Bahadur Singh in respect of the mortgage of January 6th, 1892. The assignee sued on foot of the mortgage and obtained a decree on November 10th, 1903. In execution of his decree, he put up the mortgaged property for sale and the property was sold on September 20th, 1904, and was purchased by Hazari Sheo Shanker Pershad. The partition suit of Tara Chand was pending all this time and it ended in a compromise between the parties in consequence of which a decree in terms of the compromise was passed on June 9th, 1906. It may be observed here that Musammat Sone Kuar had died before Tara Chand and the other members of the family came to a compromise. Under that compromise, the mortgage of January 6, 1892, was allotted to Tara Chand. On August 6, 1910, Tara Chand brought a suit in the Court of the Munsif of Benares for the recovery of the money due on the mortgage of January 6, 1892. The suit was brought against the mortgagor and against Ran Bahadur Singh and Hazari Sheo Shanker Pershad. Among the allegations in the plaint, it was stated that Musammat Sone Koer had no right to make the assignment and that the said assignment was invalid under the law. The purchaser of the mortgaged property resisted the suit on various grounds. It was urged in defence that Fakir Chand was separated from the other members of his family and that the doctrine of lis pendens did not apply to the case. It was further asserted that Musammat Sone Kuar was competent to make the assignment and that the plaintiff was estopped from questioning it by reason of his having given consent to the grant of the succession certificate to Musammat Sone Kuar. The learned Munsif dismissed the claim being of opinion that the assignment made by Musammat Sane Kuar was not invalid as Section 52 of the Transfer of Property Act was inapplicable. The learned Judge on appeal affirmed the decision of the first Court. Tara Chand has come up in second appeal to this Court. He contends that as the assignment in favour of Ran Bahadur Singh was made by Musammat Sone Kuar during the pendency of the partition suit, the assignment is void. For the respondents, the reply is that the transfer of the mortgage debt of January 6, 1892, does not fall within the definition of 'immoveable property' and hence the doctrine of lis pendens as enunciated in Section 52 of Act IV of 1882 is not applicable. In support of this contention, the learned Vakil for the respondents has referred to Gour's 'Law of Transfer', Vol. I, (3rd Edition page 40), where the authorities of the different High Courts are collected and commented upon. Two rulings of this Court have also been referred to, namely, Abdul Majid v. Muhammad Faizullah 13 A. 89; A.W.N. (1890) 186; Karim-un-nissa v. Phul Chand 15 A. 131; A.W.N. (1893) 51. In the case of Abdul Majid v. Muhammad Faizullah 13 A. 89; A.W.N. (1890) 186 the decision turned upon the construction of Section 3 of the Registration Act (III of 1877). There it was held that according to the definition of immoveable property given in Section 3 of the Registration Act, the assignment of a decree for sale of hypothecated property did not fall under the definition of immoveable property. In the case of Karim-un-nissa, v. Phul Chand 15 A. 131; A.W.N. (1893) 51 the question under consideration was whether a mortgage-bond should have been attached under Section 263 or under Section 274 of the old Code. And it was held that the attachment proceedings should have been held under the latter section. None of these rulings touches the point in issue between the parties to this appeal. On the contrary, there are later rulings of this Court which directly bear upon the point before us. In the case of Chuni Lal v. Abdul Ali Khan 23 A. 331; A.W.N. (1904) 9 the remarks of Sir Arthur Strachey, C.J. at page 335 are specially in point and conclude the question in favour of the appellants. The principle laid down in that case was followed in Parsottam Narayan v. Chheda Lal 29 A. 76; A.W.N. (1906) 283; 3 A.L.J. 675. We, therefore, find that the assignment by Musammat Sone Kuar of the mortgage of January 6th, 1892 in favour of Ran Bahadur Singh was void under Section 52 of Act IV of 1882, and that the assignment cannot affect the rights of any other person than Musammat Sone Kuar.

2. It was also argued on behalf of the respondents that the question of the validity of the assignment on the ground of legal necessity should be gone into. We do not think that the point arises in the case considering the view we have taken above. We, therefore, allow the appeal, set aside the decree of the lower Appellate Court and remand the case to that Court to be disposed of according to law. Costs including in this Court fees on the higher scale shall abide the event.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //