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Pitambar Das Vs. Punna and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All511
AppellantPitambar Das
RespondentPunna and anr.
Excerpt:
- - it was argued that because the plaintiff had been made a pro forma, defendant in the suit by daulat ram with the express proviso that no relief was desired against him, therefore it was not necessary for the plaintiff to disclose this third mortgage, but the plaintiff must have been very well aware that a decree in that suit would be followed by an auction sale, and that if he did not disclose his third mortgage, then the auction-purchaser would not be aware of it......it was his duty to have pleaded this third mortgage in that former suit. we may note that the transfer of property act also lays the duty on a vendor to disclose all matters affecting the title to the property to his vendee, and it was therefore the duty of the plaintiff in his sale deed of 28th july 1924 to daulat to mention this third mortgage, because the question would be of importance when daulat sued for sale on the second mortgage. we agree with the finding of the lower appellate court, and we dismiss these appeals with costs.
Judgment:

1. These two appeals Nos. 2332 and 2203 of 1927, are brought by the same appellant Pitambar Das against the orders of the Additional District Judge of Aligarh, dismissing his appeals. The facts are rather brief and are similar in the two cases. The facts in appeal No. 2332 are as follows: Chheddi, the father of minor defendant 1, executed three simple mortgage-deeds in favour of the plaintiff as follows: (1) 26th December 1911, (2) 25th August 1914 (3) 14th April 1919. All these deeds were on the same property. Subsequent to the third deed the plaintiff on 28th July 1924 assigned his rights as mortgagee under the second deed to one Daulat Ram. After this Daulat Ram brought a suit to enforce the second mortgage-deed, and he made the present plaintiff Pitambar Das a party to that suit. In para. 5 of the plaint it is true that he says that Pitambar Das is only made a pro forma defendant and no relief is asked for against him. Accordingly Pitambar did not disclose by a written statement the existence of the third deed. A decree was obtained and in execution of that decree the property was purchased by defendant 2 Munshi Ahmad Husain. The plaintiff has now come forward to sue on his mortgage deeds Nos. 1 and 3. The question which we have to decide is whether the plaintiff is now precluded from bringing this suit for sale to enforce his mortgage No. 3. Both the lower Courts have held that he is so precluded. It was argued that because the plaintiff had been made a pro forma, defendant in the suit by Daulat Ram with the express proviso that no relief was desired against him, therefore it was not necessary for the plaintiff to disclose this third mortgage, but the plaintiff must have been very well aware that a decree in that suit would be followed by an auction sale, and that if he did not disclose his third mortgage, then the auction-purchaser would not be aware of it. Accordingly in his present suit against the auction-purchaser, defendant 2, we consider that the plaintiff cannot succeed. It was his duty to have pleaded this third mortgage in that former suit. We may note that the Transfer of Property Act also lays the duty on a vendor to disclose all matters affecting the title to the property to his vendee, and it was therefore the duty of the plaintiff in his sale deed of 28th July 1924 to Daulat to mention this third mortgage, because the question would be of importance when Daulat sued for sale on the second mortgage. We agree with the finding of the lower appellate Court, and we dismiss these appeals with costs.


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