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Tirbeni Misir Vs. Babu Mangal Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All889; 122Ind.Cas.683
AppellantTirbeni Misir
RespondentBabu Mangal Chand
Cases ReferredPiru Mal Pillai v. Raman Chetti
Excerpt:
- - the court held the claim to be proved against tribeni misir also and passed a decree against him as well. the subordinate courts as well as this court of a single judge would, however be bound by a bench ruling of this court......share in these shops as head of the family. out of this property, four annas share he mortgaged to mangal chand on 2nd february 1927. subsequently tribeni misir the plaintiff obtained a simple money decree against moti lal alone and purchased the eight annas share in execution of the decree. the sons of moti lal, however, were able by a suit to render the sale ineffective as regards two-thirds of the property so what tirbeni misir obtained ultimately was moti lal's two annas eight pies share in the shops. the litigation ended in 1921. after 1921 mangal chand sued for sale on his mortgage of 1917, and in that suit tribeni misir was a party defendant. moti lal and his two sons were also defendants. as is usual to the indian habit tribeni misir took no interest in the suit, did not turn up.....
Judgment:

Dalal, J.

1. The facts and law have been carefully explained to the Court by Mr. Pandey and Mr. Ambika Prasad. The property in suit relates to a share in three shops and those only will be referred to in this judgment in reference to various transfers. Moti Lal along with the members of a joint Hindu family owned eight annas share in these shops as head of the family. Out of this property, four annas share he mortgaged to Mangal Chand on 2nd February 1927. Subsequently Tribeni Misir the plaintiff obtained a simple money decree against Moti Lal alone and purchased the eight annas share in execution of the decree. The sons of Moti Lal, however, were able by a suit to render the sale ineffective as regards two-thirds of the property so what Tirbeni Misir obtained ultimately was Moti Lal's two annas eight pies share in the shops. The litigation ended in 1921. After 1921 Mangal Chand sued for sale on his mortgage of 1917, and in that suit Tribeni Misir was a party defendant. Moti Lal and his two sons were also defendants. As is usual to the Indian habit Tribeni Misir took no interest in the suit, did not turn up to watch it, and waited on events. On 2nd April 1924, the mortgagee Mangal Chand and Moti Lal and his two sons entered into a compromise and under which a decree was passed against Moti Lal's two annas eight pies share in the shops. The Court held the claim to be proved against Tribeni Misir also and passed a decree against him as well. This was an ex parte decree. When the decree was passed Tribeni Misir woke up to the danger to his interest and started the inevitable proceedings to be taken by a dilatory man; he applied for re-hearing and for review. His applications were dismissed and the decree in favour of Mangal Chand remained. The decree was for Rs. 2,156/-and after realising Rs. 1,437 from the other properties Mangal Chand turned his attention to the two annas eights pies share of the shops in the possession of Tribeni. Tribeni thereupon instituted the present suit for a declaration that the decree of 1925 was not binding on him and that the share of the shops in his possession was not liable to sale in execution of the decree, and in the alternative he sought for a declaration that the payment of Rs. 97-will be a full discharge on his part of that decree. The way he worked out the sum of Rs. 97 was this; according to him as the decree for sale was passed against two-thirds of the mortgaged property, the amount of the mortgage money should have been proportionately reduced and if so reduced, it would amount to Rs. 1,437; deducting the amount already realized by Mangal Chand, the balance would be Rs. 97.

2. Both the subordinate Courts have held that the decree of 1924 was not tainted with fraud or collusion, that it was binding on Tribeni, and that by reason of the binding character, Tribeni could not obtain the declaration which he sought. At the back of the minds of both Judges there appears to be a doubt as to the propriety and correctness of the decree of 1924. This doubt was raised by reason of a Bench ruling of this Court in Jugal Kishore v. Kedar Nath[1912] 34 All. 606. It was held there that if a mortgagee released a part of the mortgaged property he was bound to reduce his claim for money on the mortgage by a proportionate amount. Mr. Ambika Prasad drew the attention of the Court to a different view taken by a Full Bench of the Madras High Court subsequently in Piru Mal Pillai v. Raman Chetti [1917] 40 Mad. 968. The learned Judges have slurred over the definite pronouncement of this Court. There can, however, be no doubt as to the conflict of authority. The subordinate Courts as well as this Court of a single Judge would, however be bound by a Bench ruling of this Court. Accepting that view, I do not think that the doubt of the subordinate Courts need have been entertained. The Munsif, a young gentleman presumably, is very hard on the Court which passed the decree of 1924, obviously thinking that if the matter had been before him, he himself would have been more wide awake, would have looked at the plaint and the written statement, not been hoodwinked by the compromise and passed a just decree. I think that this criticizm is misplaced. Mangal Chand did not have a straightforward suit against the party who may have executed the mortgage bond in his favour. He had against him the thorny hedge of the Hindu sons. Just as Tribeni himself did not derive full benefit of his auction purchase the mortgage in favour of Mangal Chand having been executed by Moti Lal alone, it was open to the sons to escape liability. Possibly Mangal Chand had no evidence to prove legal necessity and it was the right and proper course for him to accept the situation that Moti Lal's property only was liable under the mortgage. In the compromise, there is no mention made by him of the mortgaged property being released, from the burden of the mortgage. It is obvious to me that he accepted the inevitable and confined his claim for recovery of the money from Moti Lal's property. In my opinion Mangal Chand did not release any property that would have been liable to be sold under his mortgage. Moti Lal was liable to pay the whole amount and his property was consequently liable to bear the entire burden of the mortgage. A decree was certainly passed against Tribeni. There is a specific order of the Court that the claim was proved against the absent defendants. While that decree stands, Tribeni cannot obtain a declaration that the property in his possession which is the property of Moti Lal should be saved from the burden of the decree. Both the subordinate Courts have held that the decree was not tainted by fraud. The District Judge put it in these words: 'It cannot therefore be said that the decree was tainted by fraud.' He rightly pointed out that no specific fraud was alleged in the plaint, and the other point which also might be noticed is that there is no prayer for the setting aside of the decree on the ground of fraud. This appeal is dismissed with costs Permission is granted to file a Letters Patent Appeal.


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