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Jawahir Mal and ors. Vs. Udai Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All359; 31Ind.Cas.891
AppellantJawahir Mal and ors.
RespondentUdai Ram and ors.
Excerpt:
mortgage - usufructuary mortgagee--purchase by mortgagee of mortgaged property--merger. - .....a usufructuary mortgage dated november 1868. he had also a simple mortgage on the same property. jugal kishore brought a suit on foot of the latter mortgage, obtained a decree and purchased the property himself. later on the defendants, who held a decree against a judgment-creditor of jugal kishore, attached the decree held by that judgment-creditor and in execution thereof applied for the attachment of the property of jugal kishore. it is admitted that under these circumstances the defendants were in the same position as if they themselves had a decree against jugal kishore. there can be no doubt that if they had attached the interest of jugal kishore in the property they would have a right to sell all the interest jugal kishore had. in other words, they would have been entitled to.....
Judgment:

1. The question in this and the connected appeal is the same and arises tinder the following circumstances. One Jugal, Kishore was in possession under a usufructuary mortgage dated November 1868. He had also a simple mortgage on the same property. Jugal Kishore brought a suit on foot of the latter mortgage, obtained a decree and purchased the property himself. Later on the defendants, who held a decree against a judgment-creditor of Jugal Kishore, attached the decree held by that judgment-creditor and in execution thereof applied for the attachment of the property of Jugal Kishore. It is admitted that under these circumstances the defendants were in the same position as if they themselves had a decree against Jugal Kishore. There can be no doubt that if they had attached the interest of Jugal Kishore in the property they would have a right to sell all the interest Jugal Kishore had. In other words, they would have been entitled to attach and bring to sale the absolute ownership which had become vested in Jugal Kishore. Instead, however, of attaching his interest they attached merely what they described as the 'mortgagee rights' of Jugal Kishore. It was mortgagee' rights which were put up to sale and according to the sale certificate it was 'mortgagee' rights that were purchased by the defendants. 'The present suit is a suit by the plaintiffs, who are heirs of Jugal Kishore, asking for possession of the property and in the alternative that they, should be allowed to redeem the mortgage. The Court of first instance dismissed the case upon a preliminary point. The lower Appellate Court overruling this preliminary ground remanded the case for decision on the merits. The defendants have appealed. It is contended on their behalf that when Jugal Kishore, who was a mortgagee under a usufructuary mortgage, put up the property of his mortgagor to sale and purchased the property, a merger in law took place and Jugal Kishore became the absolute owner and the mortgagee right ceased to exist. This no doubt is quite correct, but it does not help the defendants who are themselves responsible per only having attached and purchased 'mortgagee' rights. Under the circumstances we think that the view taken by the Court below on this point was correct and accordingly its order of remand mast be affirmed. We dismiss the appeal with costs.


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