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Lachman Singh Vs. Collector of Moradabad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All641
AppellantLachman Singh
RespondentCollector of Moradabad and anr.
Cases Referred and Deo Lal Jha v. Bindeshwari Narayan Singh
Excerpt:
- - nawal kunwar however failed to pay to the mortgagee his share of the profits and the mortgagee then brought a suit for recovery of the same. 4. but in our opinion, for reasons to be presently stated, the decree of the lower appellate court is perfectly correct and ought to be affirmed......appointed a lambardar in consequence of the action of beldeo singh and gulab singh in getting her name recorded as against the 2/3rd share in patti debi singh. though nawal kun-war's name was entered in the khewat she had no proprietary interest in the share, and that share was owned by baldeo singh and gulab singh. it follows, therefore that nawal kunwar was a benamidar of baldeo singh and gulab singh, the beneficial owners oi the share recorded in her name. the decree for profits obtained against nawal kunwar must therefore be deemed to have been binding on baldeo singh and gulab singh and as it was in execution of that decree that the share recorded in the name of nawal kunwar was. purchased by the mortgagee, the mortgagee must be held tc have acquired the proprietary interest of.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit or redemption of a usufrucuary mortgage dated 1st November 1868. The mortgage was executed by two brothers named, Gulab Singh and Baldeo Singh and their mother Mt. Nawal Kunwar in favour of Rai Pradman Krishna, the predecessor-in-title of the defendant-respondent. Under the mortgage-deed the usufruct of the mortgaged properties was to be appropriated by the mortgagee in lieu of the interest on the principal mortgage money. The property mortgaged was a certain share in village Agol and some share in a village named Kudarni. In the present appeal we are concerned only with a portion of the share mortgaged in village Agol. The claim with respect to that share was decreed by the trial Court, but has been dismissed by the lower appellate Court. The share mortgaged in village Agol belonged to Debi Singh and was situated in Patti Debi Singh. Half of that Patti was mortgaged to Pradman Krishna. The names of Gulab Singh and Baldeo Singh, the sons of Debi Singh, and of Mt. Nawal Kunwar, the widow of Debi Singh, were recorded in the revenue papers in respect of Patti Debi Singh. Nawal Kunwar's name was recorded as against 2/3rds share in the Patti and the balance of 1/3rd share in the Patti was recorded in equal shares in the names of Gulab Singh and Baldeo Singh. The shares recorded in the names of Gulab Singh and Baldeo Singh were sold in execution of decrees against them and purchased by the predecessor-in-title of the defendant-respondent and we are not concerned with, those shares in the present appeal.

2. Mt. Nawal Kunwar was appointed lambardar of Patti Debi Singh and in that capacity she realized the profits of the entire Patti. As half of the Patti was mortgaged to the mortgagee, the mortgagee was entitled to a half-share of the profits of the Patti. Nawal Kunwar however failed to pay to the mortgagee his share of the profits and the mortgagee then brought a suit for recovery of the same. The suit was decreed and in execution of that decree the share recorded in the name of Nawal Kunwar was put to sale and purchased by the mortgagee. The plaintiff's case was that Nawal Kunwar was not the owner of the share recorded in her name and that her name was entered in the revenue papers simply for her consolation, and therefore the mortgagee, by the auction-purchase referred to above, did not acquire the equity of redemption in the share recorded in the name of Nawal Kunwar and that the plaintiff, as the reversioner of Gulab Singh and Baldeo Singh, was entitled to a decree for redemption with respect to that share.

3. The contesting defendant resisted the suit inter alia on the ground that the plaintiff-appellant was estopped from denying the title of the defendant to the property recorded in the name of Nawal Kunwar and purchased by the predecessor-in-title of the defendant. This contention was overruled by the trial Court, but found favour with the lower appellate Court with the result that the lower appellate Court dismissed the plaintiff's claim for redemption with respect to the share recorded in the name of Nawal Kunwar. In second appeal before us it is argued that as the mortgagee auction-purchaser knew, or at any rate had the means of knowing, that Nawal Kunwar had no interest in the share recorded in her name and that that share belongetl to Gulab Singh and Baldco Singh, the principle of estoppel has no application to the case. It is urged that by purchasing the share that was recorded in the name of Nawal Kunwar the mortgagee could not acquire the equity of redemption in that share and, accordingly, the lower appellate Court was wrong in dismissing the plaintiff's suit with respect to that share. We agree with the learned Counsel for the appellant that the facts of the present case did not invite the application of the doctrine of estoppel. It has been found by the Courts, below that the entire Patti Debi Singh was owned by Baldeo Singh and Gulab Singh and that Nawal Kunwar had no right or interest in the same. It is further manifest that the fact as to who were the owners of Patti Debi Singh was known to the mortgagee or in any case could have been known to him by the exercise of ordinary diligence. It cannot therefore be said that the mortgagee was, in any way, by the act, omission or declaration of Gulab Singh or Baldeo Singh, misled into the belief that Nawal Kunwar had a proprietary interest in the share recorded in her name. This being so, the plea of estoppel, in our judgment, was without substance and was rightly overruled by the trial Court.

4. But in our opinion, for reasons to be presently stated, the decree of the lower appellate Court is perfectly correct and ought to be affirmed. Gulab Singh and Baldeo Singh allowed the name of their mother Mt. Nawal Kunwar to be recorded in the khewat. But for the entry of her name, Nawal Kunwar could not be a recorded cosharer and could not be appointed a lambardar as a lambardar has to be selected from amongst the recorded cosharers. It is clear therefore that Nawal Kunwar was appointed a lambardar in consequence of the action of Beldeo Singh and Gulab Singh in getting her name recorded as against the 2/3rd share in Patti Debi Singh. Though Nawal Kun-war's name was entered in the khewat she had no proprietary interest in the share, and that share was owned by Baldeo Singh and Gulab Singh. It follows, therefore that Nawal Kunwar was a benamidar of Baldeo Singh and Gulab Singh, the beneficial owners oi the share recorded in her name. The decree for profits obtained against Nawal Kunwar must therefore be deemed to have been binding on Baldeo Singh and Gulab Singh and as it was in execution of that decree that the share recorded in the name of Nawal Kunwar was. purchased by the mortgagee, the mortgagee must be held tc have acquired the proprietary interest of Baldeo Singh and Gulab Singh in the same. The view that we take is in consonance with the view taken in Kondi Savla Bachel v. Banachand Cheniram A.I.R. 1925 Bom. 422 and Deo Lal Jha v. Bindeshwari Narayan Singh, A.I.R. 1929 Pat.440. In this view of the matter Baldeo Singh and Gulab Singh's equity of redemption passed by virtue of the auction-purchase to the mortgagee and the mortgage came to an end.

5. To put the matter in another way If either Baldeo Singh or Gulab Singh had been a lambardar and the decree for profits had been obtained against either of them and the share was sold in execution of that decree, it could not be argued for a moment that the equity of redemption did not pass to the auction-purchaser. In our judgment therefore the mere fact of the share being recorded in the name of a benamidar cannot alter the position and the beneficial owners must be hold to be bound by the decree in the suit for profits and by the auction-sale in execution of that decree. For the reasons given above we affirm the decree of the lower appellate Court and dismiss this appeal with costs.


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