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Madho Singh Vs. Pancham Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1927All211; 101Ind.Cas.409
AppellantMadho Singh
RespondentPancham Singh and ors.
Cases ReferredDinobundhu Shaw Chowdhry v. Jogmaya Dasi
Excerpt:
- - katju, has declined to take time to make good the deficiency. katju does not want any time to make good the deficiency, the cross-objection in appeal no. 660 of 1924 must fail and is hereby dismissed with costs......mortgage, held by kunwar madho singh. the defendants nos. 2 to 4 had also contended that madho singh's suit was not at all maintainable being the suit of a second mortgagee, who was a party to the suit on the first mortgagee. this contention was repelled in the courts below and was repeated in the cross-objection which we have dismissed for non-payment of court-fees. we are, therefore, no longer concerned with this argument.4. the main question for determination in this appeal is whether the defendants nos. 2 to 4 are entitled to priority due to the mortgage of 1904. we have heard the learned argument addressed to us by the learned counsel for the appellant. we think that the courts below were right. the sale-deed relating to village nagla chamaran has been read to us. we find that.....
Judgment:

Mukerji, J.

1. We have got two appeals before us, viz., No. 660 of 1924 and No. 957 of 1924 and also a cross-objection in the former appeal. The cross-objection is easily disposed of. For, there is a deficiency in Court-fee, and the learned Counsel, Dr. Katju, has declined to take time to make good the deficiency. The cross-objection went to the Toot of the suit and prayed that the suit should be dismissed. Evidently, therefore, the Court-fee had to be paid either on the valuation of the suit or at least on the value of the property sought to be exempted. In any case there is a deficiency and as Dr. Katju does not want any time to make good the deficiency, the cross-objection in Appeal No. 660 of 1924 must fail and is hereby dismissed with costs.

2. Both the appeals arise out of the same suit and the claim is briefly this: Mt. Sahodra, who is described in the plaint as the Defendant No. 1, executed two mortgages, one in favour of Ranjit Singh, on the 9th May 1904 and the other in favour of Kunwar Madho Singh, the appellant, in both the appeals, on the 12th of May 1915. The second mortgage is in suit. Madho Singh claimed recovery of Rs. 2,000, principal amount, and Rs. 3,000 as interest, by sale of, three properties out of four mortgaged to him. He sought to exempt one of the properties mortgaged, viz., that in village Meerpur, from the suit. The plaintiff made parties to his suit, besides the mortgagor, several persons. The Defendants Nos. 2 to 4 represent one Ram Chandra about whom we shall hear much. They and others were made parties as subsequent transferees.

3. The suit was contested by the Defendants Nos. 2 to 4 alone and they said that they were, although in form, subsequent transferees, but, practically, they were prior mortgagees. Their defence was based on the following facts: Ranjit Singh brought a suit for sale on his mortgage of 1904 in 1916 and made, besides Mt. Sahodra, Madho Singh a party to the suit. A decree for sale was obtained and the properties mortgaged were put to sale. One of the properties, viz., Nagla Chamaran, was sold for a sum of Rs. 20,000 on the 20th of February 1919. Mt, Sahodra, however, did not allow the sale to be confirmed. She managed to raise some money and to pay off the decretal amount, plus the penalty and the fees payable for the sale. She raised the money. This was on the 16th of March 1919. She sold the village of Nagla Chamaran to Ram Chandra for a sum of Rs. 30,000. On the same day she mortgaged her share in village Nagla Nai Taharpur in favour of Ram Chandra and raised a sum of Rs. 4,000. To be more accurate, the sale was executed by Mt. Sahodra and other co-sharers of the village Nagla Chamaran. It should also be mentioned that the mortgage of 1904 had been executed not only by Mt. Sahodra, but also by some of her co-sharers. This fact, however, will not be very material later on. The contention of Ram Chandra's successors was that his money went to satisfy the earlier mortgage of 1904. To the extent his money went to satisfy the mortgage, his successors were entitled to claim priority over the second mortgage, held by Kunwar Madho Singh. The Defendants Nos. 2 to 4 had also contended that Madho Singh's suit was not at all maintainable being the suit of a second mortgagee, who was a party to the suit on the first mortgagee. This contention was repelled in the Courts below and was repeated in the cross-objection which we have dismissed for non-payment of Court-fees. We are, therefore, no longer concerned with this argument.

4. The main question for determination in this appeal is whether the Defendants Nos. 2 to 4 are entitled to priority due to the mortgage of 1904. We have heard the learned argument addressed to us by the learned Counsel for the appellant. We think that the Courts below were right. The sale-deed relating to village Nagla Chamaran has been read to us. We find that the executants expressly say that they were paying off the first mortgage, that is to say, of 1904, and the vendees were to have the property free from all encumbrances. There can be no doubt that the intention of the parties to the sale-deed was that the first mortgage should be kept alive for the benefit of the vendees. The case of Dinobundhu Shaw Chowdhry v. Jogmaya Dasi [1901] 29 Cal. 154 is really conclusive on the point. In that case there were two prior mortgages and there was an attachment of the property subject to those mortgages. The mortgagor made a third mortgage, raised a sum of Rs. 40,000 and paid off the two prior mortgages. The purchaser at auction sale, which followed the attachment, contended that he had purchased the property free from first two prior mortgages and that the third mortgagee was not entitled to any priority due to the first two mortgages. It was held by their Lordships of the Privy Council that it must be assumed that the third mortgagee advanced the money to pay of the first two mortgages with the idea of keeping the benefit to himself and not to benefit the auction-purchaser by the transaction. The same principle applies to this case. It cannot be said that Ram Chandra advanced the money for the sole benefit of Madho Singh, viz., to enlarge his security, and not to keep for, himself the priority which was due to the mortgage he was satisfying. The mere fact that Mt. Sahodra made a private sale to Ram Chandra does not in any way affect the principles on which the suit-should be decided.

5. Similar argument applies to the mortgage of the same date and in favour of Ram Chandra. We are, therefore, of opinion that the Courts below were right in giving priority to the descendants of Ram Chandra. (After discussing the other appeal his Lordship dismissed both the appeals.)


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