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ishri Pershad Vs. Gopi Nath and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.19
Appellantishri Pershad
RespondentGopi Nath and ors.
Excerpt:
registration act (iii of 1877), section 50 - registered and unregistered deed--priority--same property covered by deeds by different persons. - - 4. it must be clearly noted here, that though bindraban purchased at the auction sale the right, title and interest of his mortgagors, what was sold to ishri prasad by the heir of bal kishen was the full right of ownership and not the mere right, title and interest of the transferor......and not the mere right, title and interest of the transferor. an examination of ishri prasad's sale-deed makes this clear. that sale-deed was registered. ishri prasad's vendor was the full owner of the mortgage of 21st august 1894, was out of the way, but we may assume for the purposes of this appeal that the vendor legally owned only the property subject to that mortgage; what he purported to sell, was the full right of ownership. in this, he may or may not have acted dishonestly, but there is nothing to show that ishri prasad had any notice whatever of the pre-existing unregistered mortgage. the prior mortgagee brought the present suit for sale out of which this appeal has arisen.5. in defence, ishri prasad pleaded section 50 of the registration act and urged that his registered.....
Judgment:

1. The facts of this case are as follows:

2. Ram Baksh and others mortgaged certain property to the present respondents on 21st August 1894. On 30th May 1896, they mortgaged the same property to Bindraban. Both mortgage-deeds were unregistered. Bindraban brought a suit for sale on his mortgage and purchased the property himself in execution of his decree.

3. His son sold the property to Bal Kishen. The latter's heir sold it to Ishri Prasad, the present appellant.

4. It must be clearly noted here, that though Bindraban purchased at the auction sale the right, title and interest of his mortgagors, what was sold to Ishri Prasad by the heir of Bal Kishen was the full right of ownership and not the mere right, title and interest of the transferor. An examination of Ishri Prasad's sale-deed makes this clear. That sale-deed was registered. Ishri Prasad's vendor was the full owner of the mortgage of 21st August 1894, was out of the way, but we may assume for the purposes of this appeal that the vendor legally owned only the property subject to that mortgage; what he purported to sell, was the full right of ownership. In this, he may or may not have acted dishonestly, but there is nothing to show that Ishri Prasad had any notice whatever of the pre-existing unregistered mortgage. The prior mortgagee brought the present suit for sale out of which this appeal has arisen.

5. In defence, Ishri Prasad pleaded Section 50 of the Registration Act and urged that his registered sale-deed took effect as regards the property comprised therein against the unregistered mortgage-deed of the plaintiff which related to the same property. The Court of first instance upheld this plea and dismissed the suit. The lower Appellate Court reversed that decision and decreed the suit. On second appeal to this Court, the learned Judge, who heard the appeal, confirmed the decree of the Court below, hence this appeal under the Letters Patent.

6. It is urged before us, and with great force, that our learned brother has taken a wrong view of the facts of the case. The argument in his judgment is that, what was mortgaged to Bindraban, was the equity of redemption; and this is what Bindraban purchased, and what his son sold to Bal Kishen, and what Bal Kishen's heir transferred to Ishri Prasad; and as the latter only purchased the equity of redemption, the two deeds do not cover the same property and, therefore, Section 50 of the Act does not apply. Reliance was placed on the decision in Sobhagchand Gulabchand v. Bhaichand 6.B. 193 at p. 208. The error in the above is patent on an examination of the sale-deed in favour of Ishri Prasad. That deed does not purport to transfer only the right, title and interest of the transferor, but is, in plain terms, a sale, out and out, of the full right of ownership in the property. The mortgage in the present suit is a mortgage of the same property.

7. The two deeds, therefore, do cover the same property and Section 50 of the Act does apply.

8. There can be no question that if the original mortgagors had executed the two deeds now in conflict, the sale-deed being registered would take effect against the unregistered mortgage-deed, even though after the execution of the latter, the mortgagors would have been the owners of only the equity of redemption.

9. The rights of the mortgagors were acquired by the appellant's vendor, but he sold to the appellant not the equity of redemption but the property itself. In principle, there is no difference.

10. We would call attention to the remarks of Melville, J. in Sobhagchand Gulabchand Bhaichand 6.B. 193 at p. 208, which were quoted with approval by Aikman, J., in Baldeo Parshad v. Baldeo A.W.N. (1901) 112.

11. In the present case, the 'estate' was covered by both the deeds in suit. The case is also covered by the decision in Ram Lal v. Thakur Bachha Singh 10 A.L.J. 114 : 16 Ind. Cas. 625.

12. We allow the appeal, set aside the decree of this Court and restore that of the Court of first instance, with costs in all Courts.


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