Skip to content


Gopal Das Vs. Durga Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All357; 38Ind.Cas.649
AppellantGopal Das
RespondentDurga Singh and anr.
Excerpt:
transfer of properly act (iv of 1882), section 82 - mortgage--contribution to mortgage-debt--rateable liability. - - we think that the decision of the lower appellate court was clearly wrong and that the price paid by the plaintiff for property t was quite immaterial. the law as to rights under the two mortgages is very clearly set forth in section e2 of the transfer of property' act......of the transfer of property' act. the liability of property a was to be ascertained by finding the value of property a and the value of property t, but from the value of property t should be deducted the amount of the liability of .property t under the earlier mortgage. property a would then be liable rateably for the second mortgage having regard to its own value and the value of property t after the deduction aforesaid. it is quite clear from what we have stated that if the decree of the first court was wrong at all, it was wrong in allowing the plaintiff too little and not too much. we allow the appeal, set aside the decree of the learned judge of this court and also of the lower appellate court and as the case was decided on a preliminary point, we remand the case to the lower.....
Judgment:

1. It seems to us absolutely clear in the present case that the decree of the Court of first instance should be affirmed. Two properties were mortgaged to the predecessor-in-title of the plaintiff. (We will call the properties 'T' and 'A'). Property T had already been mortgage 1 to the same mortgagee in the year 1888. A suit was brought on foot of the first mortgage and property T was sold and purchased by the plaintiff or his predecessor-in-title. The present suit was subsequently instituted on foot of the second mortgage for the sale of property A. The question was, what was the liability of property A? The Court of first instance gave a decree for a rateable part of the amount of the second mortgage, having regard to the respective values of property T and property A. The defendants appealed and the lower Appellate Court, after considering what was the price paid by the plaintiff or his predecessor for the purchase of property T, dismissed the plaintiff's suit. A learned Judge of this Court affirmed the decree of the lower Appellate Court. We think that the decision of the lower Appellate Court was clearly wrong and that the price paid by the plaintiff for property T was quite immaterial. The law as to rights under the two mortgages is very clearly set forth in section e2 of the Transfer of Property' Act. The liability of property A was to be ascertained by finding the value of property A and the value of property T, but from the value of property T should be deducted the amount of the liability of .property T under the earlier mortgage. Property A would then be liable rateably for the second mortgage having regard to its own value and the value of property T after the deduction aforesaid. It is quite clear from what we have stated that if the decree of the first Court was wrong at all, it was wrong in allowing the plaintiff too little and not too much. We allow the appeal, set aside the decree of the learned Judge of this Court and also of the lower Appellate Court and as the case was decided on a preliminary point, we remand the case to the lower Appellate Court with directions to re-admit the appeal upon its original number on the file and proceed to hear and determine the same according to law having regard to what we have said. Costs here and heretofore will be costs in the cause.


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