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Chandar Sekhar Tewari Vs. Balakdhar Dubey - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.611
AppellantChandar Sekhar Tewari
RespondentBalakdhar Dubey
Cases Referred and Sham Lal v. Ghasita
Excerpt:
mortgage - priority--minor--proper guardians appointed--negligence of guardian, effect of, on decree. - .....executed a mortgage in favour of the plaintiff in respect of 10 pies which included the 5 1/3 pies mortgaged to the defendant's ancestor. the plaintiff brought a suit upon his mortgage and joined as parties to it, among others, the present defendant who was at the time a minor and his brother kalka prasad. kalka prasad had been appointed by the district judge guardian of the minor and he apparently was appointed by the court guardian of the minor for the suit, in that suit, kalka prasad, on behalf of himself and the minor, set up two mortgages of 1890 as having priority over the plaintiff's mortgage. but apparently he did not put forward the decree of the 30th of may 1892 under which the right of the defendants, as prior mortgagees under the mortgage of 1879 had been recognized and.....
Judgment:

Banerji, J.

1. This appeal arises out of a suit for possession of a 3 pie, 1 1/2 suls zemindari share and for mesne profits. I must observe at the outset that the judgment of the lower Appellate Court, is most unsatisfactory and does not comply with the requirements of Order XLI, Rule 31 of the Code of Civil Procedure. It does not set forth the points at issue, nor does it give full reasons for the decision on these issues. All that it says is that a competent Court has already decided that the defendant's mortgage is not prior but subsequent, and as that decision has not been set aside, it operates as res judicata. The learned Judge does not refer to the judgment which he says has the effect of res judicata, and it is difficult to see which judgment he had in view. The facts of the case are somewhat complicated. It appears that under a registered bond dated the 21st of May 1879, a 5|-pie share was mortgaged to the ancestor of the defendant. A suit for sale was brought on the basis of that mortgage, and a decree was obtained on the 30th of May 1892. On the 20th of October 1898, the same mortgagors: executed a mortgage in favour of the plaintiff in respect of 10 pies which included the 5 1/3 pies mortgaged to the defendant's ancestor. The plaintiff brought a suit upon his mortgage and joined as parties to it, among others, the present defendant who was at the time a minor and his brother Kalka Prasad. Kalka Prasad had been appointed by the District Judge guardian of the minor and he apparently was appointed by the Court guardian of the minor for the suit, In that suit, Kalka Prasad, on behalf of himself and the minor, set up two mortgages of 1890 as having priority over the plaintiff's mortgage. But apparently he did not put forward the decree of the 30th of May 1892 under which the right of the defendants, as prior mortgagees under the mortgage of 1879 had been recognized and ordered to be enforced. The Court, however, held that the mortgages of 1890 were not proved and passed a decree on the 25th of January 1904 for sale of the property comprised in the plaintiff's mortgage. The decree provided that certain other mortgages held by Musammat Kabutra and others should first be redeemed by the plaintiff, but it made no such provision in favour of the defendant so that the decree, so far as the defendant was concerned, was a decree for sale ' free from any incumbrance which might have existed in favour of the defendant. If the learned Judge of the lower Appellate Court had this decree in view, he was wrong in in saying that a competent Court had declared that the defendant's mortgage was subsequent to that of the plaintiff. The Court made no such declaration. The effect, however the decree was, as I have pointed out above, that the defendants could not take the benefit of (She decree which they had obtained in 1892 on the basis of their mortgage of 1879. In execution of the decree obtained by the defendants, they caused 3 1/3 pies to be sold by auction and purchased it on the 27th of March 1905. Subsequently, on the 26th of October 1908, the plaintiff in execution of his decree caused 5 1/3 pies to be sold and bought it himself, but did not obtain possession of the 3 1/3 pies purchased by the defendants. He, therefore, brought the suit out of which this appeal has arisen for possession of that share. The defendant contended that he had priority over the plaintiff by reason of his having purchased the property under the prior mortgage of 1879 and the decree passed on the basis of that mortgage. He urged that his brother Kalka Prasad was a man of vicious habits, and that ) the decree, obtained by the plaintiff in the suit in which Kalka Prasad was the defendant's guardian, was fraudulently obtained as against the defendant. He further contended that the property purchased by him was not a part of the property purchased by the plaintiff, that is to say, that the property sold under the decrees held by the respective parties was not the same property, The Court of first instance decided all these points against the defendant and decreed the claim This decree has been affirmed by the lower Appellate Court. The defendant has preferred this second appeal. In my judgment, the decrees of the lower Courts are right. So far as the question of the identity of the property is concerned, it is clear that parts of the same property were sold in execution of the two decrees obtained respectively by the plaintiff and the defendant. The plaintiff was the mortgagee of l0 2/3 pies, half of which, namely, 5 1/3 pies, was subject to the mortgage in favour of Musammat Kabutra and others which the plaintiff was ordered to redeem. That mortgage was not redeemed so that the plaintiff brought to sale the remaining 5 1/3 pies. It is a part of this 5 1/3 pies which was purchased by the defendant. He does not pretend that he purchased any portion of the property which was held in mortgage by Musammat Kabutra and others. This point was found against the defendant by the learned Munsif, and no objection was taken in appeal to the lower Appellate Court on that point. The next point is that the priority, which existed in the defendant's favour under the decree of 1892, not having been put forward in the suit brought by the plaintiff upon his mortgage of October 1898, it is not now open to the defendant to assert that he has priority over the plaintiff. This is settled by the principle of the ruling of their Lordships of the Privy Council in Sri Gopal v. Pirthi Singh 24 A. 429 : 29 I.A. 118 : 4 Bom.L.R. 827 : 6 C.W.N. 889. The decree passed in the plaintiff's favour against the defendant is binding upon him, and although it may have been a wrong decree inasmuch as it did not safeguard the defendant's rights under his prior mortgage and prior decree, yet the defendant is precluded from claiming priority over the plaintiff whom the decree gave the right to pell the property mortgaged to him free from any incumbrance which might have existed in the defendant's favour. The defendant, however, contends that the decree is not binding upon him inasmuch as it was fraudulently obtained. This plea was taken in the memorandum of appeal to the lower Appellate Court but was not considered by the learned Judge. I have, however, looked into the matter and find that there is nothing on the record to show that there was any fraud on the part of Kalka Prasad, the defendant's guardian. As I have stated above, Kalka Prasad was the certificated guardian of the defendant. He is his own brother, and, as the Court of first instance finds, lives jointly with him so that the defendant was properly represented in the previous litigation by a duly constituted and legal guardian. If the guardian neglected to support the case of the defendant, and there is nothing to show that he did so deliberately, that circumstance alone would not entitle the defendant to avoid the operation of the decree. As he was represented in the suit by a duly constituted guardian and by a person who could legally act as such, he was. as much bound by the decree passed in that suit as he would have been if he were of full age; see Daulat Singh v. Raghubir Singh A.W.N. (1894) 141 and Sham Lal v. Ghasita 23 A. 459 A.W.N. (1901) 147. The decree being a decree binding upon the defendant, the plaintiff, by reason of his having purchased in execution of that decree, is entitled to the property purchased by him, and the decrees of the Courts below are right. I dismiss the appeal with costs.


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