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Sher Singh Vs. Durgpal and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.724
AppellantSher Singh
RespondentDurgpal and anr.
Excerpt:
mortgage - priority--unregistered mortgage--bona fide purchaser under registered sale-deed--registration act (iii of 1877), section 50. - 1. this appeal arises out of a suit to recover principal and interest on two unregistered bonds, dated respectively the 27th and 30th of august 1887. the original mortgagor did not appear to defend the suit. on the 12th of july 1888, he had made a registered mortgage of the same property to one ram hans in lieu of a prior bond of the year 1886. ram hans brought a suit on his bond and in execution of his decree the property was sold by auction and was purchased by daryao on the 20th of january 1898. daryao sold the same property by a registered deed to the appellant on the 26th of may 1904. the courts below have found that the unregistered bonds are genuine. the first court gave the plaintiff a decree for sale subject to the defendant-appellant's prior incumbrance. the lower appellate.....
Judgment:

1. This appeal arises out of a suit to recover principal and interest on two unregistered bonds, dated respectively the 27th and 30th of August 1887. The original mortgagor did not appear to defend the suit. On the 12th of July 1888, he had made a registered mortgage of the same property to one Ram Hans in lieu of a prior bond of the year 1886. Ram Hans brought a suit on his bond and in execution of his decree the property was sold by auction and was purchased by Daryao on the 20th of January 1898. Daryao sold the same property by a registered deed to the appellant on the 26th of May 1904. The Courts below have found that the unregistered bonds are genuine. The first Court gave the plaintiff a decree for sale subject to the defendant-appellant's prior incumbrance. The lower Appellate Court on appeal by the appellant here modified the decree of the Court of first instance by directing that before bringing the property to sale the plaintiff was to pay Rs. 400 with interest at 6 per cent., being the amount paid by the purchaser at the auction. In appeal to this Court it, is contended that the appellant here, being a bona fide purchaser under a registered deed without notice of any incumbrance created by the plaintiff's unregistered bonds, has a right to hold the property and that the plaintiff can no longer enforce his unregistered mortgages. We have been referred to Gangaram Ghose Sirdar v. Kalipado Ghose 11 C. 661; Ram Lal v. Bachcha Singh 10 A.L.J. 114; 16 Ind. Cas. 625 and Ishri Pershad v. Gopi Nath 10 A.L.J. 222; 34 A. 63; 17 Ind. Cas. 19. These rulings support the contention advanced on behalf of the appellant, and it appears to us that it must be upheld. We allow this appeal, set aside the decrees of the Courts below and dismiss the plaintiff's suit with costs in all Courts including in this Court fees on the higher scale.


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