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Har Prasad Vs. Sita Ram - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All141
AppellantHar Prasad
RespondentSita Ram
Excerpt:
- - act, makes it manifest that lis pendens continues till the decree obtained in the suit is completely satisfied or discharged or the execution of the same becomes barred by limitation. ghanshiam das (1931) 18 air oudh 157, but even then there is no analogy between a suit like the present and a suit by a hindu reversioner for possession of property alienated by a widow......held the same up as a shield against the claim of the subsequent mortgagee auction-purchaser in a suit for possession of the mortgaged property the transferee pendente lite succeeded in the trial court, but the lower appellate court passed an unconditional decree for possession in favour of the sub-sequent mortgagee auction-purchaser in order to appreciate the respective contentions of the parties, it is necessary to briefly state the facts. one girdhari lal was the owner of the property in dispute. on 25th may 1916 he (girdhari lal) executed a simple mortgage with respect to the property in dispute in favour of one banarsi das. again, on 11th june 1917, he executed a simple mortgage in favour of har prasad defendant-appellant. then on 30th may 1918, girdhari lal executed a third simple.....
Judgment:

Iqbal Ahmad, J.

1. The contest in the present appeal is between a subsequent mortgagee who in execution of a decree for sale obtained on the basis of the subsequent mortgage purchased the mortgaged property and a transferee pendente lite who redeemed certain prior mortgages and held the same up as a shield against the claim of the subsequent mortgagee auction-purchaser in a suit for possession of the mortgaged property The transferee pendente lite succeeded in the trial Court, but the lower Appellate Court passed an unconditional decree for possession in favour of the sub-sequent mortgagee auction-purchaser In order to appreciate the respective contentions of the parties, it is necessary to briefly state the facts. One Girdhari Lal was the owner of the property in dispute. On 25th May 1916 he (Girdhari Lal) executed a simple mortgage with respect to the property in dispute in favour of one Banarsi Das. Again, on 11th June 1917, he executed a simple mortgage in favour of Har Prasad defendant-appellant. Then on 30th May 1918, Girdhari Lal executed a third simple mortgage in favour of Sita Ram plaintiff respondent. Sita Ram put his mortgage of 1918 into suit and obtained a final decree for sale in the year 1922.

2. Before Sita Ram put his decree into execution Girdhari Lal on 27th September 1926 executed a simple mortgage in favour of Har Prasad in lieu of the mortgage of 1917. In other words, this mortgage of 1926 was in renewal of the mortgage of 1917. Finally, on 10th April 1928, Girdhari Lal executed a deed of usufructuary mortgage in favour of Har Prasad. The consideration of this usufructuary mortgage was the amount due on the basis of the mortgages of 1916 and 1926. Har Prasad thereafter redeemed the simple mortgage of 1916. In execution of his decree for sale Sita Ram purchased the property in dispute on 2nd August 1930, and when he proceeded to take possession of the property he was resisted by Har Prasad, the usufructuary mortgagee. Sita Ram then filed the suit giving rise to the present appeal for possession of the property in dispute. Har Prasad contested the suit inter alia on the ground that in consequence of the facts stated above he was subrogated to the position of the mortgagees of 1916 and 1917 and that Sita Ram could not be granted a decree for possession without redeeming those mortgages. This contention, as already stated, was overruled by the lower Appellate Court and in my judgment rightly.

3. The mortgages of 1916, 1917 and 1926 were simple mortgages and the only remedy of Har Prasad under those mortgages was to sue for sale of the mortgaged property. Har Prasad was not entitled to possession of the mortgaged property under any one of those three mortgages. It was only by virtue of the usufructuary mortgage of 1928 that Har Prasad acquired possession of the mortgaged property. This usufructuary mortgage however offended against the provisions of Section 52, T.P. Act, which inter alia provides that during the pendency of any suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. The explanation added to Section 52, T P. Act, makes it manifest that lis pendens continues till the decree obtained in the suit is completely satisfied or discharged or the execution of the same becomes barred by limitation.

4. By the auction-purchase made by him Sita Ram became entitled to the possession of the property in dispute and this right could not be adversely affected by the usufructuary mortgage for the simple reason; that mortgage was made during the pendency of the suit for sale brought by Sita Ram. Sita Ram was, therefore, entitled to the possession of the property untrammelled by the usufructuary mortgage of 1928. It is however contended by the learned Counsel for Har Prasad that, as a transfer pendente lite is not void but only voidable, Sita Ram ought to be put to terms and should not be allowed to take possession of the property without paying the amount due on the basis of the mortgages of 1916 and 1926. In this connexion it is pointed out that Sita Ram's suit is analogous to a suit by a Hindu reversioner for possession of property transferred by a Hindu widow and it is said that as the reversioner is liable to reimburse a transferee with respect to encumbrances discharged by the transferee Sita Ram must also be called upon to redeem the mortgages of 1916 and 1926. I am unable to agree with this contention.

5. It may be assumed that a transfer in contravention of the provisions of Section 52, T.P. Act, is only voidable and not void, vide Jagannatha Kone v. Ramchandra Naidu : AIR1936Mad589 and Mathura Prasad v. Ghanshiam Das (1931) 18 AIR Oudh 157, but even then there is no analogy between a suit like the present and a suit by a Hindu reversioner for possession of property alienated by a widow. A Hindu reversioner is entitled to possession of the property of the last male holder subject to the liability to discharge encumbrances validly created on that property. If a transferee from a widow has already discharged certain valid encumbrances the reversioner can be granted a decree for possession conditional on the payment of the amount spent by the transferee in redeeming the valid encumbrances for the simple reason that the liability to redeem those encumbrances rested on the shoulders of the reversioner.

6. But in a case which attracts the provisions of Section 52, T.P. Act, the position is entirely different. Even though Section 52 does not operate to annul a transfer pendente lite it renders the transfer subservient to the rights of the parties to the action as determined by the judgment or decree passed in the action. In other words, unlike a transfer by a Hindu widow there is a statutory prohibition against transfers pendente lite so as to affect the right of either party to the action. It follows that Har Prasad cannot by virtue of the usufructuary mortgage jeopardise the right of Sita Ram to possession of the property, which right Sita Ram acquired by virtue of the decree in the suit for sale brought by him. That being so Sita Ram is entitled to an unconditional decree for possession of the property in dispute. To put the matter in another way, Sita Ram is, in view of the provisions of Section 52, T.P. Act, entitled to ignore the usufructuary mortgage of 1928. Harprasad cannot, therefore, rely on that mortgage and claim reimbursement with respect to the two earlier mortgages that he redeemed in his capacity as a usufructuary mortgagee. For the reasons given above, I hold that Sita Ram's suit was rightly decreed by the lower Appellate Court and dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.


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