Skip to content


Dundiya and ors. Vs. Giyani Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All149; 39Ind.Cas.119
AppellantDundiya and ors.
RespondentGiyani Ram and ors.
Excerpt:
transfer of property act (iv of 1882) - mortgage--decree--unhypothecated property, sale of, validity of. - .....plaintiffs-appellants on the 27th of june 1868 gave a usufructuary mortgage of the property now in suit, khewat no. 64, to the predecessor in-title of the defendants. on the 13th of november 1870, he gave a simple mortgage of other property, khewat no. 83, to the same mortgagee. on the 18th of july 1874, the mortgagee brought a suit to recover the amount due on the simple mortgage. the plaintiffs were minors. their father 'was dead. they were made defendants and musammat sabhedra, their mother, was declared to be guardian on their account. it appears that she had applied to be appointed a certificated guardian of these minors; that the mortgagee had intervened in that proceeding and had objected to her being so appointed a certificated guardian, and that his objection had been.....
Judgment:

1. The facts out of which this second appeal has arisen are as follows: The father of the present plaintiffs-appellants on the 27th of June 1868 gave a usufructuary mortgage of the property now in suit, Khewat No. 64, to the predecessor in-title of the defendants. On the 13th of November 1870, he gave a simple mortgage of other property, Khewat No. 83, to the same mortgagee. On the 18th of July 1874, the mortgagee brought a suit to recover the amount due on the simple mortgage. The plaintiffs were minors. Their father 'was dead. They were made defendants and Musammat Sabhedra, their mother, was declared to be guardian on their account. It appears that she had applied to be appointed a certificated guardian of these minors; that the mortgagee had intervened in that proceeding and had objected to her being so appointed a certificated guardian, and that his objection had been successful. When the suit was brought on the 18th of July 1874, she filed a written statement in Court in which she pointed out that though she had applied to be appointed a certificated guardian, the mortgagee had objected and that he had made it impossible for her to defend the suit and that the suit could not, therefore, be maintained. She further pleaded that if the suit could be entertained by the Court, then she should be allowed ample time within which to pay up the debt due. Only one issue was framed in the case, as to whether or not the defendants were entitled to the three years' period of grace for which they asked. The Court held in their favour on this issue. The claim was decreed and it was directed that the debt should be recovered from the hypothecated property. This decree was passed on the 25th of November 1874. On the 20th of May 1879 in execution of this decree both Khewat No. 83 and the equity of redemption in Khewat No. 84 were put up for sale and were purchased by the mortgagee. The plaintiffs brought the present suit for redemption in the year 1915, more than twenty years after they had arrived at the age of majority. They seek to redeem the usufructuary mortgage of the 27th of June 1868.

2. The two points for decision are, first of all, whether the decree obtained on the 25th of November 1874 was a nullity; and secondly, whether the sale of the 20th of May 1879 of the equity of redemption in Khewat No. 84 was or was not a nullity. So far as the decree is concerned, it was passed at a time when the Civil Procedure Code of 1859 was in force. It is true that at the forefront of her so called written statement, the mother stated that she was not willing to defend as guardian of the minors, but it is clear from the judgment that she did subsequently defend, and that the only issue in the case referred to the question of grace which she claimed on behalf of the minors and that that was decided in her favour. It is, therefore, impossible to hold that the decree of the 25th of November 1874 was a nullity. In regard to the sale of the equity of redemption in Khewat No. 84, in view of the decision in Luchmi Dai Koori v. Aswan Singh 2 C. 213 ; 25 W.R. 421 ; 1 Ind. Jur. 625 ; 1 Ind. Dec. (N.S.) 430, which was followed and accepted by this Court in Ram Baran Singh v.Gobind Singh 3 A.L.J. 95 ; A.W.N. (1906) ; 7 ; 28 A. 295, this plea also has no force. In the first of the two above-mentioned cases the decree passed, though not worded exactly the same as the decree which we are now considering, was practically and actually to the same effect. It ran: That the claim be decreed; that the plaintiff recover the amount with costs and interest, and that the decree be executed against the property specified in the bond.' At page 220 of the report, the judgment runs as follows: We have had the decree read to us and we consider this to be not such a decree as we know is sometimes made, namely, a decree restricting the parties in the first instance to the sale of the mortgaged property. But it is a decree against the mortgagor generally coupled with what is called a declaration of the lien, a declaration which it is exceedingly common to insert in decrees against mortgagors upon a bond of this nature. The bond also, was not only a bond pledging the property, but a bond which made the party personally liable for the money. Now, upon a decree of that kind, we have no hesitation in holding that a person may in law proceed either against the person or against the mortgaged property specified in the decree'. The decree which we are considering in the present case was to the same effect and it is clear that under the decree, as the law then existed prior to the passing of the Transfer of Property Act, the mortgagee could proceed against either the hypothecated property or any other property of the mortgagor. In the present case he proceeded both against the, mortgaged property and also against other property. All these properties were put to sale. It is impossible to hold that this sale was a nullity. In this view the appellants' right to the property was lost many years ago and is no longer vested in them. The appeal therefore, fails and is dismissed with costs, including fees on the higher scale.


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