Skip to content


Mitru Thapa and ors. Vs. Mst. Gurubari Goudani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberA.F.A.D. No. 21 of 1946
Judge
Reported inAIR1950Ori150; 16(1950)CLT64
ActsTransfer of Property Act, 1882 - Sections 91 and 92; Hindu Law
AppellantMitru Thapa and ors.
RespondentMst. Gurubari Goudani and ors.
Appellant AdvocateB.N. Das and ;G.B. Mohanti, Advs.
Respondent AdvocateP.C. Chatterji, Adv.
DispositionAppeal dismissed
Cases ReferredNarayana v. Peohiammal
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. this is an appeal by defendants 1, 2 and 3 in a suit for recovery of possession on declaration that the said defendants are mere trespassers. the disputed lands amounting: to 3.33 acres of arable lands described in schedule of the plaint belonged originally to one bala bagatia whose widow is defendant 4. be died, sometime in 1931 leaving behind his widow (defendant 4), his three daughters (plaintiffs 1, 2. and 3) and his predeceased daughter's sons (defendants 1, 2 and 3). the disputed lands had been mortgaged with possession on 26th february 1924 by way of security for a loan of rs. 190 to one akula sahu. in pursuance of the condition of mortgage, akula was to enjoy the usufruct in lieu of the interest as they accrued. akul con. tinued to remain in possession as mortgagee.....
Judgment:

Ray, C.J.

1. This is an appeal by defendants 1, 2 and 3 in a suit for recovery of possession on declaration that the said defendants are mere trespassers. The disputed lands amounting: to 3.33 acres of arable lands described in Schedule of the plaint belonged originally to one Bala Bagatia whose widow is defendant 4. Be died, sometime in 1931 leaving behind his widow (defendant 4), his three daughters (plaintiffs 1, 2. and 3) and his predeceased daughter's sons (defendants 1, 2 and 3). The disputed lands had been mortgaged with possession on 26th February 1924 by way of security for a loan of Rs. 190 to one Akula Sahu. In pursuance of the condition of mortgage, Akula was to enjoy the usufruct in lieu of the interest as they accrued. Akul con. tinued to remain in possession as mortgagee till 9nd January 1943 when it wag redeemed. Akul returned the mortgage bond with an endorsement of satisfaction of that debt. It has been the plaintiffs' case, which has been found to be true by the learned Court of Appeal below, that the loan was paid off by plaintiff 1 (Gurubari) at the request of defendant 4 (Tara Bagatiani) and possession was delivered to her. That she has been unlawfully dispossessed by defendants 1 to 3, who secured an invalid gift from defendant 4. Hence the suit for declaration that the gift was beyond the competence of defendant 4, void and inoperative as against the reversionary rights of the plaintiffs and, particularly, as against the right flowing to plaintiff 1 from her redeeming the mortgage at the request of defendant 4 and for recovery of possession from the said defendants. Besides, there is a claim for damages for such unlawful occupation resulting in deprivation of her crops raised by plaintiff 1 in the year 1943 and of possession in the years, following before the suit.

2. The defendants' reply is that they (defendants l to 3) paid up the mortgagee and redeemed the mortgage by raising a loan. They did so as the defendant 4 promised to give them the lauds by way of gift, they having been brought up from their infancy by her. That accordingly, defendant 4 gifted away the lands to them by an unregistered deed of gift and made over possession and that it was by trickery that the plaintiff l secured possession of the usufructuary mortgage deed and got certain endorsements forged on its reverse.

3. For the purpose of Second Appeal, the following findings are incontrovertible and conclusive :

(i) That at the request of defendant 4, who was unable to redeem the mortgage, the plaintiff 1 paid up the mortgage money in thepresence of defendant 4 and the punchas of the village and the mortgagee, on receiving the money in full discharge of the mortgage, recorded an endorsement to that effect and made over the deed to the plaintiff 1;

(ii) That the plaintiff l was given possession of the lands bub was later dispossessed forcibly by defendants 1 to 3 ;

(iii) That the unregistered dead of gift executed by defendant 4 in favour of defendants 1 to 8 was void and inoperative, and the donees under the deed were never given possession under it which they secured by force.

4. On these findings, the learned lower appel. late Court, reversing the judgment of the learned Muaaif, decreed that the plaintiffs should be restored to possession and should recover the Bum of Rs. 90 being the value of the crops forcibly removed by defendants l to 3. Hence the Second Appeal.

5. the only point that his been urged before us by the defendants-appellants is that the plaintiff cannot subrogate herself to the position of a mortgagee on payment of the mortgage money, as she is a mere volunteer, and stranger, having no present interest in the disputed properties.

6. Reliance is placed on SECTION 91 and 92, T. P. Act. Section 91 enumerates ' persons who may redeem or sue for redemption '. The material portion of the section is quoted for facility of reference:

'91. Besides the mortgagor, any of the following persona may redeem ..... the mortgage property, namely: (a) any person other than the mortgagee of the Interest sought to be redeemed who has any interest in, .... the property mortgaged or in ..... right to redeem the same . ... .'

Section 94 defines the right acquired by the redeemer. It reads:

'92. Any of the persona referred to in Section 91 (other than the mortgagor) and any mortgagor shall, on redeeming property subject to the mortgage, have so far as regards redemption, foreclosure or Bate of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

'The right conferred by this Section is called the right of subrogation, and a person acquiring the same is said to be subrogited to rights of the mortgagee whose mortgage be redeems,

'A person who advanced to a mortgagor money with which the mortgage had been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been (SIC), if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated

' Nothing in this section shall be deemed to confer a light of subrogation on any person unless the mortgage in respect of which the eight is claimed has been redeemed in full. '

Considering both the sections together, it is urged, that only two alternatives are open toplaintiff 1, namely, either she should possess an interest in the property mortgaged or the right to redeem the same ; or she should be one who has advanced to a mortgagor money with which the mortgage has been redeemed and in whose favour the mortgagor has, by a registered document, agreed that he should be subrogated to the rights of the mortgagee, whose mortgage has been redeemed; and that as the plaintiff owns no interest (present and subsisting) in the property mortgaged or the right to redeem the same, and as an advancer of money no agreement conceding the right of subrogation to her has been registered, she cannot be subrogated to the rights of the mortgagee and thus cannot recover possession. It is said no third alternative is open to the plaintiff.

7. The contention that she is entitled to the right of subrogttion on the strength of advancement of money to the mortgagor cannot be considered with any amount of seriousness as there is no registered agreement by the mortgagor.

8. It has to be examined, however in some detail, whether she owns any interest within the meaning of Section 91(a). At one time, there was some conflict of opinion over the question involved. Long since, it has been the trend of authorities in almost all the High Courts that a reversioner has no interest, either in the mortgage property or the equity of redemption. The reversioner has a mere spes successions in the estate left by last male owner, it being always uncertain if a particular reversioner would survive the limited owner on which contingency his obance of succession to the property solely depends.

9. This bare obance is not capable of assignment or disposition by a reversioner. It cannot be reduced to possession during the subsistence of the limited tenure.

10. I shall presently deal with the various decisions bearing on the point. Before doing so, I propose to give my own commentary on the interpretation of the section. Dissociated from the historical context, the words 'any interest in the property mortgaged or the right to redeem the same' would convey the widest possible connotation so as to include the particular kind of 'interest' (to use the word for the sake of convenience) that a reversioner of Hindu law has in the last male owner's property during the subsistence of limited owner's tenures It is well known that a Hindu reversioner, provided he is the next presumptive heir at the time, can maintain a suit for declaration of his status, for avoidance, with reference to its futurity, of any disposition of the corpus by the for-the-time-being limited owner affecting his prospectiveright which, at that moment, is nothing bat a mere chance (spas successionis). This has been permitted not only as a matter of policy founded upon likely disappearance of available evidence relating to the circumstances that would invalidate the transaction, but also on the theory of representation. The reversioner in such a suit, represents the entire line of reversioners, and his action is one which is aimed at protecting the remainder of the estate after exhaustion of the limited interest of the life tenure-holder. As it is representative in character, even a more remote reversioner can maintain the action, on proof that the then nearer reversioner had by their conduct disqualified themselves from suing. If there is any reason behind it, it is this that all the reversioners that intervene between the last male holder and the next full owner of the inheritance and the latter, all taken collectively, own the estate of a remainderman. The interest owned by this collective body is not subject to chances but constitute a certain and vested interest in the property. The full ownership of the property which always, and, without exception, includes right of disposition both inter vivos and testamentary and which is transmissible to the owner's natural heirs is certainly not in the life estate-holder, whether a widow or a daughter or the like. The residuum of interest which together with the life tenure would make up the complete ownership, constitutes an interest which subsists, side by side, with the life tenure at they two together constitute the estate. Conceding hypothetically that all the presumtive heirs living at any particular moment may not survive the limited owner, there must be some others who must have come into existence by then, or in the long run, the estate may escheat to the State. The State, therefore, in such a contingency, cannot be excluded from the category of the reversioners. In short, the status of the entire line of reversioners down up the State, taken collectively, is hardly different from that of a remainderman a term so familiar in English law. Apt illustration of remainderman's right to redeem is furnished by the decision of the Chancery Division of the High Court of England in the case of Aynsly v. Heed, (1754) 91 E. R. 264. The facts of that case are.

11. One John Aynsly, the plalntff's father, was seised of estates at South Middleton, subject to a mortgage, in fee, to the defendant Francis for securing 200, died having devised by his will the said estate called Highlands to the defendant Reed, his heirs and assigns subject to the payment of debts, legacies to the uses following, to the plaintiff for life, remainder to trustees to preserve, but neverthless, to permit the plaintiff to receive the rents and profits after his, the testator's debts and legacies were paid, and not sooner, remainder to the plaintiff's sons and daughters, by any other wife than the present in strict settlement, and in de. fault of such issue, then to his two daughters, the defendants, Mary Davidson and Ann Tweddel, during their lives as tenants in common, remainder to the defendant Francis Tweddel foe life, with remainder to his first and other sons, in tail male, remainder to his grandson the defendant, George Tweddel, in like manner, with remainder to his first and other sons in tail male, with the ultimate remainder to the testa, tor's own heirs. The plaintiff proved the will and the defendant Reed entered on the estates The bill was for an account of the testator's personal estate; for an account of what was due on the defendant Francis Daleval's mortgage; and for a direction to pay up the said mortgage etc. By the decree an account was directed of what was due on Deleval's mortgage and upon the plaintiff's or upon the defendant's, Mary David-son, Ann-Tweddel, and George Tweddel, paying what should be found due, the mortgage was to convey, &c.;, and in default of the plaintiff's or the said defendants redeeming, the bill as to the defendants, the mortgagee, was to be dismissed, and the said defendants were to stand foreclosed; but in case, the plaintiff or the said defendants, or any of them, should redeem, the equity of redemption was to be in the person so redeeming.

12. It cannot be said that there was not some amount of uncertainty in the bequest falling to the lot of the defendants above named; but yet it being a remainderman's estate was a subsisting interest in the equity of redemption. Such an interest would clothe the holder thereof with a status enabling him to exercise a right of redemption as against the mortgagee for the purpose of saving the estate from extinction. Such an extinction would defeat remain, derman's prospective inheritance. On exercise of right of redemption, the redeemer would in equity become the owner of redemption.

13. The decision in the case of Mahadeo v. Babya, A.I.R. (16) 1929Nag. 27:(112 I.C.248)) bears a close analogy to Aynsly s case ((1764) 21 E.R. 264) just quoted. The testator bequeathed his property to his widow for life, and on her death to A and his heirs. A survived the testator. It was held that A's interest is a vested interest and as son or heir, though not entitled to possession during the widow's life time, has an interest within the meaning of Section 91 of the Transfer of Property Act that entitled him to redeem. Though the decision is that of a Single Judge of the Chief Court of Nagpur, I find it is based upon very closely reasoned arguments derived fromauthorities mentioned in col. (ii) p. 28 of the report. The cases relied upon are Bilaso v. Munni Lal, 88 ALL. roe-: (11 T.C. 516) and Bhagabati v. Kali Charon, 39 I, A. 54: (88 cal. 468 P. C.) In the latter ease, on the death of the testator's mother and wife, the property was to pass to his sister's sons. It was held that the sister's sons who were living at the testator's death had a vested Interest though their possession and enjoyment of the property was postponed till the deaths of the testator's mother and widow. In Mahadeo's case, (A. I. R. (16) 1929 Nag. 27: 113 I. C. 248), the learned Judge has made a distinction between an individual reversioner's interest and that on one whose testamentary succession was certain till after deaths of certain intervening life tenants though not reducible to immediate possession. It is uncertainty implicit in an individual reversioner's chance of succession that makes it distinguishable from that of a remainderman's certainty to succession and that of his heirs.

14. I should like to note that I am not oblivions of the fact that Hindu widow's estate is not identically the same as that of a life estate. The difference between the two consists in a Hindu widow having the absolute power of alienation in certain circumstances defined in Hindu law. This is because she represents the whole estate for the purpose of its preservation. That does not mean that the whole estate vests in her.

15. The legislative intent ought to be clear from the language employed to indicate the condition of eligibility for the right to redeem. The Legislature did not feel satisfied by using the words 'any interest in, or charge upon the property mortgaged', but went further to sayor in or upon the right to redeem the same.' The reveraioner, as a presumptive heir, may not have an interest in praesenti in the property mortgaged, but has, by all means, an interest in the equity of redemption, in the sense that, in case the eqity of redemption is foreclosed, he too, along with the life estate owner and the entireline of reversioners one or the other of whom most be surviving when the succession traceable to the last male owner reopens, should stand foreclosed. It may be noted that the 'interest' contemplated is not one which is immediately reducible to possession.

16. Looked at from another angle or vision, in case of a mortgage binding on the estate, all persons interested in it, in a manner and to the extent so as to be debarred from right to redeem the mortgage property, in a suit, either for foreclosure or for sale, are to be deemed as joint debtors. In the suit, they may or may not beimpleaded as parties-defendant 9 in their individual capacities. The decrees for foreclosure orsale of mortgage property obtained by a mortgagee of the last male (full) owner as against a limited owner are, in the absence of any fraud or collusion, binding on them as much as if the decrees were obtained against them eo namine. The position of a joint debtor, in relation to his right of subrogation to the security of the common creditor, accruing from his liquidation of his debt is well-settled in English and American law, particularly in those States of America, in which the English Common Law Doctrine has not been abrogated. In these countries one of the joint tenants or tenants-in-common may, on redemption, enter upon possession of the mortgage property for the purpose of reimbursing himself subject to account with his co-tenant, being entitled to possession and receipt of the whole of the rents. In this country, however, he cannot do so, except in the case of an usufructuary mortgage, or, it may be, an English mortgage. In Walker v. Eaton, (so Am. Decisions, 637), a joint debtor's right to be subrogated to the security of the common creditor has been affirmed by Shipley C. J. The learned Judge says:

'If one who may be obliged to redeem the abate of a co-tenant to relieve his own share from incumbranee, could have no right to retain the share of such co-tenant as security and to obtain a reimbursement of the amount equitably chargeable to it, he might utterly fail to obtain compensation. And yet his co-tenant, without making any payment, might be entitled to the full possession and benefit of his share of the land, discharged from the incumbrance. The law oannot justly be charged with such results as produced by conformity to ita provisions. The principle is well established and is of frequent application in the redemption of mortgages, that one having an Interest in an estate under encumbrance, may redeem the whole estate when necessary to redeem his own share or to relieve his own title from incumbrance even against the pleasure of a co-tenant or other owner, and may be regarded as the assignee of the incumbrance upon the other shares or interest.'

In my judgment, therefore, a reversioner is neither a volunteer nor a stranger when he, in order to protect the estate from the ravages of a debt binding thereon, and ex post facto on him, or on those whom he may represent, or by whom he may be represented, within Hindu law principles governing and applying to the status of reversioners, qua presumptive heirs, to the estate discharges the security.

17. I am not disposed, however, to decide the instant case on this finding of mine in view of the weight of authorities against it, particularly, as the present case can be dealt with fairly and squarely as between the parties, treated from a standpoint to which I shall come presently.

18. I shall now address myself to the decisions in which the view contrary to the onealready expressed by me has been taken. The first case, that I shall pick up, is the case of Chhotey Singh v. Surat Singh, 6 Luck, 691: (A. I. E. (IT) 1930 oudh. 294). In this case, relying on the dictum of the Privy Council in the case of Amrit Narayan Singh v. Gaya Singh, 46 I. A. 86: (A. I. R. (4) 1917 P. 0. 95) it washeld that in the face of very definite and clean pronouncement of their Lordships of the Judicial Committee, in Amrit Narayan Singh v. Gaya Singh,(45 I. A. 35: A. I. R. (4) 1917 P. C. 95) it can hardly be possible to say, now, that the position of a Hindu reversioner is in any way better than that of a mere possibility. They said so, while considering the correctness of the decision of a Single Judge in the case of Sheoratan Singh v. Hubba Singh, (Select case No. 271) in which Mr. Spankie, A. J. C., formulated the question arising for determination in the case in the following terms:

'The question I have to decide seems therefore to be whether the plaintiffs, as presumptively entitled to the possession of the lands on the death of the widow, if they survive her, have only a spes successionis or have an interest in the lands and in the right to redeem them.'

And answered the same by holding that

'the expectancy of succession which the person haa who is presumptively entitled to possession on the death of a Hindu widow, if be survive her, seems to be a possibility coupled with an interest.'

Their Lordships of the Judicial Committee, in Amrit Narayan Singh's case (45 I. A 36: A. I. R. (4) 1917 P. C. 96) made the following observations which have been quoted by the learned Judges who decided Chhotey Singh's case, (5 Luck. 691: A. I. n. (17) 1930 oudh. 294.)

'A Hindu reveraioner has no right or interest in praeaenti in the property which the female holder holds in her life until it vests in him on her death, should he survive her, he haa nothing to assign or relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is a mere spes successionis.'

This observation, however, understood in its fullest logical extent, did not enable the learned Judges to rule out the view that I have set down above. They said:

'It is not necessary tor us in the present case to decide whether a reversioner should or should not be allowed to redeem the property, where he succeeds in making out a case on the ground of the redemption being necessary for the preservation or protection of the property.'

It is always desirable that when a reversioner wants to make out a case of an interest in the equity of redemption so as to be entitled to redeem he must plead and prove that it was necessary for the preservation and protection of the property. In the present case, unless if it can be gleaned from the circumstances esta. blished, such case has not been pleaded. The learned counsel for the plaintiffs has not specifically urged any arguments before us on this ground.

19. In the case of Rama Chander v. Kallu 30 ALL. 497: (5 A. L.J. 631), it has been pronounced that a reversioner is not a person interested in the property in possession of Hindu widow, His interest is contingent upon his surviving mortgagor's widow. As a general rule it is said, 'interest' means 'present interest' and not a mere contingent right. This was a case in which the reversioner wanted not only to redeem but also to recover possession. I should leave some notes with regard to this decision. The question as to whether the reversionery heirs of a deceased husband of a Hindu widow had an interest in the right to redeem the mortgage property was not at all taken into consideration, Besides, the question was considered in the background of the special features present in the frame of the suit, as will appear quite obviously from the passage:

'It seems to us that possibly this suit waa instituted by the plaintiffs with a view to obtain an equitable charge of Hen upon the property which would enable them in future proceedings to sell the property or in some way deprive the widow of her life estate.'

In such a case, if I can say so with great respect, the conclusion reached by their Lordships was perfectly correct. The decision of the Madras High Court, in the case of Govinda v. Lokanath, 40 M. L. J. 114 : (A. I. R. (g) 1931 Mad. 51), too established the proposition laid down therm that the equitable principle of subrogation could not be extended to a case of payment made under a belief in the future acquisition of an interest in property. In the case of Narayana v. Pechiammal, 36 Mad. 426 : (15 I. C. 306), Sundra Ayyar J., who delivered the leading judgment, held:

'I am on the whole inclined to hold that a reversioner cannot voluntarily claim to redeem a mortgage made by the last male holder or institute a suit fof that purpose.'

20. But at the same time, the learned Judge observed:

'But does it necessarily follow that when a suit is Instituted by a mortgagee for sale, the reveraioner has not got a sufficient interest in the property to entitle him to discharge the mortgage to prevent the loss of the property to which he would ba entitled to succeed on the death of the widow? I do not think I am bound to hold that his rights stand on the same footing-when he claims of his own accord to redeem and when he tries to save the property for 'the estate' upon the mortgagee attempting to sell it. The tight of a person interested in the payment of money while another is bound by law to pay and who therefore pays it, to be reimbursed by the other is recognised in Section 69, Contract Act. There is no reason for holding that only those who have an interest in a mortgaged property within the meaning of Sections 85 and 91, T. P. Act can be held to be interested in the payment of money due on a mortgage created by the last male owner.'

With the latter observations, I find myself to be in jub (sic) accord. The learned Judge haa made a distinction between a raversioner volunteering to pay in order to redeem and one who proceeds to do so whether on request or not to save the property for 'the estate.' No doubt, the learned Judge ia emphatic to say :

'The principle contended for by the appellant that the mere payment of a mortgage debt by a stranger would entitle him to the mortgagee's rights by subrogation haa always been negatived in India. See Rama Tuhul Singh v. Biseswar Lall, 2 I, A. 131 : (15 Beng. L. R. 208 F. C.). It ia impossible to argue that it ia open to any meddler to claim a lien by discharging a mortgage with which he has no concern, I must therefore overrule the contention that the plaintiff can claim to be subrogated to the rights either of the daughters or of Mnthu Goundan by the mere foot that he discharged the mortgage of the latter.'

There are various other: cases cited at the bar and found in the text books in which a reversioner's claim of a right to redeem has been negatived. I do not think it necessary to consider each of these cases individually. It is sufficient to aay that the fact of the question that I presented above and that has been noticed in some of the oases already specifically dealt with, and particularly in the case of Narayanna v. Pechhiamma.1, (36 Mad. 426 : 16 I. C. 206), has not been approached in any one of them. Not desiring to be in disagreement with my learned brother, I would hold that as a reversioner, pure and simple, plaintiff 1 cannot claim having sub. rogated to the rights of the mortgaged. My personal view of the matter, however, is aa I have set out above.

21. Despite the conclusion expressed above, the plaintiffs cannot be non-suited. Their suit for declaration that the gift made by defendant 4 in favour of defendants l to 3 is void must succeed. Defendant 4 is not competent to make a gift of the property except to enure daring her life time. Besides, the unregistered deed of gift propounded by the defendants in this case cannot convey to them any title. The plaintiffs therefore will have a declaration that defendants 1 to 3 are trespassers and their act of dispossession of plaintiff l, from the disputed property is unlawful.

22. The question that next arises ia, what reliefs plaintiff 1 would be entitled in return for her having discharged the mortgage debt The endorsement on the back of the mortgage bond makes it clear that she was invited by the widow (defendant 4) to make the payment) and to hold the property in possession in lieu thereof till she was paid up the sum of Rs. 190 paid by her. This endorsement, however, cannot be held to amount to vesting her with the right of subrogation within the meaning of Section 92, T. P. Act. The third paragraph of the section requires thata person who, independently of having any interest, or charge in, or upon the mortgage property of the right to redeem the same, advances money to redeem the mortgage shall be subrogated to to the rights of the mortgagee if the mortgagor has by a registered instrument agreed that such persons shall be so surrogated. The endorsement, referred to not having been registered, it cannot serve the purpose of effecting subrogation. But, in my view, a third alternative is open' to the plaintiff l. She is entitled to an equitable charge on the property and in that capacity to retain possession till she is paid up by defendant 4. As against this, a Bench decision of the Madras High-Court in the case of Muthuswami Ghettiar v. Ramaswami Samiyar, A. I. R. (39) 1942 Mad. 751: (204 I. o. 441) haa been cited to us. In that case, it was held :

'A transferee of immovable property is not entitled to a charge on it in respect of the amount disbursed by him in paying off a mortgage on the property when he is not entitled to be subrogated to the rights of the mortgagee by reason of the fact that there does not exist a registered agreement of the nature contemplated ia the third paragraph of Section 92.'

Leach C. J. observed as follows:

'Other oases havo been quoted to the Court, in the coarse of the arguments and it would appear that the expression 'Charge ' and 'subrogation' have been used much in the same sense. We are, however, prepared to accept the proposition that a person who is entitled to be subrogated to the rights of a mortgagee is in law in a somewhat different position to a person who is merely entitled to a charge under an order of the Court. Bat this does not mean that the appellant is entitled to aeb the Court to give him a charge. Since the amendment of the Act in 1929 the Court cannot hold a transferee who has discharged an encumbrance on the property to be subrogated to the rights of the mortgagee unless an agreement in writing has been entered into between him and the transferee and the document has been registered. That being the position, is the Court to defeat the very object of the amendment by giving equitable relief in the form of a charge? Equity follows the law and in my opinion that maxim applies in full force here. To aooept the argument which has been presented to the Court would mean setting the section at naught, and this cannot be done. This is sufficient to dispose of the appeal, but there is a farther factor. Equity will not grant relief to a person who comes into Court with andean hands. You are aware that in some cases--the Court has granted equitable relief to a person whose hands have not been altogether clean, but this does not mean that the Court is going to grant relief to a person who has been a prime mover in the committal of fraud on another's creditors. The appellant In this case is the maternal uncle of respondent 3 and took a prominent part in bringing this transaction about.'

This case, however, is distinguishable on its own facts. The transfer under which the transferee was claiming was held by all the Courts to constitute a fraud on the creditors. In the facts of the present case, however, the plaintiffs are entitled to an equitable charge on the property. The position of a stranger acquiring a lieu onthe principles of estoppel has been summarised at page 125 of Ashburner on Mortgages.

'Expenditure by a stranger may give him a Hen on the principle of estoppel.

In order that this principle may apply, the stranger must make the expenditure in the erroneous belief that he has a title to the property on which it is made, and, secondly, the person against whom the esstoppel is raised must know, (a) that the stranger acts in the belief that he has a title, and (b) that the title on the faith of which he la acting is a bad one.'

In the facts of the present case, the circumatan-oes favouring the application of the principle of estoppel are stronger. That plaintiff 1 had, a be. lief that she had title to the property would appear from the fact that Bala Bagatia and hie mortgagee, while entering into transaction, thought it necessary that his daughters should be made parties--executants to the deed of mortgage. Accordingly, plaintiff 1 appears to be a signatory thereto. This must hare led her to believe that she had an interest in the property mortgaged and for the matter of that in the equity of redemption. At the time she incurred expenditure to discharge the mortgage, she was prevailed upon by her mother to do so that she should retain possession of the property recove-red from the hands of the mortgagee till ahe would be reimbursed. To an endorsement to that effect, her other sisters also attested. Oldfield and Hughes JJ. in the case of Govinda v. Lokanath, 40 M. L. J. 114: (A. I. R. (8) 1921 Mad. 51), have explained the equitable principle that would govern cases like the present one. They premised:

'This failing, appellants' claim has next to be considered as based on what they alleged to be the equitable principle, that, as they made their payment in good faith on the understanding that they were to obtain an interest in the property, which would have justified them, they are to be regarded as having been entitled to make them and to be subrogaged accordingly.'

In dealing with this question, they expressed their approval to the proposition laid down in the cases of Neesom v. Glarksom, (1846) 4 Hare 97 : 62 R.R. 51; Butler v. Rioe, (1910) 2 oh. 277: (79 L. L. Oh. 652) and Tangya Fala v. Trimbak Daga, 40 Bom. 646 : (A. I. R. (8) 1916 Bom. 302). They said :

'Thus in Neesom v. ClarJfsom, (1845) 4 Hare 97 : 62 R. R. 51, the payments were made by a transferee of property under a mistake as to the ownership of his transferor; hut the fact that the former had obtained possession would go far towards supporting his bonu fide belief in hia title. In Butter v. Rice, (1910-2 Ch. 277 : 79 L. J. Oh. 652), the plaintiff was under the impression that the property, in respect of which he paid, actually belonged to Rice, not to his wife; and he had satisfied himself as to the possession of the title-deeds and obtained a guarantee from Rice's solicitor, before making his payment. In Tangya Fala v. Trimback Daga, (40 Bom. 646 ; A. I. R. (3) 1916 Bom, 502), another case of this class, the mistake was regarding the actual ownership and possession had passed.'

23. In this connection, I have already quoted from the judgment of Sandra Ayyar J, in Narayana v. Pechiammal, 96 Mad. 426 : (15 I. C. 306) which folly supports the view that in the circumstanoes in which plaintiff l, admittedly one of the next reversioners, has liquidated the dues under the previous mortgage executed by the last male owner would entitle her to an equitable charge or lien on the property. At any rate, the position is clear enough that defendants l, 2 and 3, mere trespassers, should not be held justified in dispossessing the plaintiffs.

24. My order, therefore, is that plaintiff 1 shall be allowed to recover possession and the amounts of damages ascertained by the Court of Appeal below in a fixed sum from defendants l, 2 and 3. Her possession, however, should be subject to defeasance by defendant 4, on her being reimbursed the money that she paid to the mortgagee. During the time that she has been out of possession, she shall be entitled to recover mesne profits from defendants l, 2 and 3 in an appropriate proceeding, failing which she shall be entitled to interest from defendant 4.

25. Subject to this modification, the appeal fails and is dismissed with costs.

Jagannadha Das, J.

26. I agree with my Lord the Ohief Justice that the plaintiffs are entitled to a declaration that defendants 1 to 3 are trespassers who have dispossessed plaintiff 1 unlawfully from the disputed property and that accordingly plaintiff l should have a decree for recovery of possession in the terms and with the qualifications mentioned in the concluding paragraph of His Lordship's judgment.

27. As pointed out by my Lord, the facts of the case and the endorsement on the back of the mortgage-bond clearly make out that plaintiff l made the payment for redemption of the suit usufructuary mortgage, not as a mere volunteer but at the request of her mother, defendant 4, who owned the property at the time as succeeding to her husband, and who felt herself unable to redeem the mortgage. It would also appear from the said endorsement that it was understood between plaintiff l and defendant 4 that she should keep possession of the property in view of the payment made, until she was repaid the money paid by her. On these facts, I have absolutely no difficulty in holding that though plain tiff 1 had no right of subrogation, she is entitled to a possessory lien in respect of the property both as a matter of law and as a matter of equity, on the strength of which she can recover back her lost possession from defendants 1 to 3, who are mere trespassers, claiming as they do, under a void gift. Defendant 4 herself, if ahe threatened to disturb the possession of the plaintiff without repaying the money and in violationof her specific understanding might have been restrained from doing so. Defendants 1 to 3 who claim by a gift under her cannot claim a higher position.

28. As regards the larger question raised, namely, whether a.reversioner is a person having interest within the terms of Section 91, Sub-section (a), Transfer of Property Act, I am unable, with respect, to consider his position or the position of the entire body of reversioners taken as a whole, to be analogous to that of a remainderman or a joint debtor and to support the existence of the interest contemplated in Section 91(a), Transfer of Property Act on that footing. It appears to me, that consistently with the well. established principle that what is vested in a Hindu widow is not a mere life, estate, but the entirety of the estate of the last male-holder, subject only to the limitation as to her capacity to deal with it, it is not legally permissible to hold that either a single reverstoner or the entire body of reversioners have any interest. I would not, therefore, be inclined to say anything which may appear to throw any doubt on the well settled line of decisions which have held that a reversioner is not a person having the kind of interest contemplated in Section 91(a). Slightly different considerations may, however, arise as pointed oat by my Lord in a case where a reversioner redeems a mortgage at the request of the widow and in the circumstances which call for his intervention for the protection of the property; but whether he would on such facts be entitled to either a right by way of subrogation or by way of a charge is not free from doubt. All that he is entitled to may be the personal right to re-imbursement under 6, 69, Contract Act: (vide also Narayana v. Peohiammal, 86 Mad. 426 : (15 I.C. 206)) It is, however, unnecessary to express any final opinion on this rather difficult question since the case now under con. sideration has not been presented on that footing.


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