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Jagat Singh and anr. Vs. Baldeo Prasad and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All290(1); 59Ind.Cas.679
AppellantJagat Singh and anr.
RespondentBaldeo Prasad and anr.
Excerpt:
pre-emption - mortgage-debt exceeding market-value of property--mortgagee taking property in lieu of mortgage-debt--price payable by pre-emptor. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - we agree with the argument raised on behalf of the appellant that the vendee is entitled to recover from the pre-emptor the full amount that he has in good faith actually paid for the property purchased, but we have to see what the appellant-vendee did in the present case actually pay. the value of the debt due on the bond is clearly limited to the value of the property in question......which has been argued before us is the question of consideration. the vendor owned property, the market-value of which was rs. 1,250. he had borrowed from the vendee appellant a sum of rs. 800 many years ago and had hypothecated this property as security. at the time that this sale was transacted, the debt due on the mortgage was rs. 2,468, the personal remedy against the mortgagor had vanished by lapse of time. therefore this sum of rs. 2,468 could only have been paid by the sale of the property. the vendor was unable to pay the debt and, as far as we can judge from the record, was not the owner of any other property. the vendee gave him rs. 100 in cash and took a sale-deed of the property ostensibly for a sum of rs. 3,000 and cancelled the mortgage-deed. a pre-emptor at once arose.....
Judgment:

1. The sole point in this appeal which has been argued before us is the question of consideration. The vendor owned property, the market-value of which was Rs. 1,250. He had borrowed from the vendee appellant a sum of Rs. 800 many years ago and had hypothecated this property as security. At the time that this sale was transacted, the debt due on the mortgage was Rs. 2,468, The personal remedy against the mortgagor had vanished by lapse of time. Therefore this sum of Rs. 2,468 could only have been paid by the sale of the property. The vendor was unable to pay the debt and, as far as we can judge from the record, was not the owner of any other property. The vendee gave him Rs. 100 in cash and took a sale-deed of the property ostensibly for a sum of Rs. 3,000 and cancelled the mortgage-deed. A pre-emptor at once arose and the Court below has given him a decree for pre-emption on condition that he should pay Rs. 1,250, the market-value of the property.

2. It is urged before us that the vendee is entitled to recover the full sum of Rs. 2,568, that being the amount of the mortgage-debt, plus the Rs. 100 paid in cash. We agree with the argument raised on behalf of the appellant that the vendee is entitled to recover from the pre-emptor the full amount that he has in good faith actually paid for the property purchased, but we have to see what the appellant-vendee did in the present case actually pay. He gave up the debt due on the bond plus Rs. 100 for the property. The value of the debt due on the bond is clearly limited to the value of the property in question. Nobody would have given to the vendee a price for his mortgage-debt greater than the security afforded by the property Just as a time barred debt is practically of no value, so mortgage debt, where the personal remedy barred cannot be greater in value than the security itself. No one in the open market would have given the appellant anything more than Rs. 1,250 for his mortgage-debt. It, therefore, is clear that the amount which the appellant paid for the properly is not the amount which was due on the face of the mortgage deed but the amount which was recoverable under the bond from the security. Nothing more than the market-value of the property could have been recovered. We, therefore, think that the decision of the lower Court was quite correct. The defendant-appellant, when he has received payment of Rs. 1,250, the market-value of the property, will be in exactly the same position as he stood after the execution of the sale-deed. On the execution of that deed the mortgage-debt was cancelled and the appellant stood possessed of property to the value of Rs. 1,250. The appeal, therefore, fails and is dismissed with costs.


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