Skip to content


Kasturi Vs. Venkatachalapathi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1892)ILR15Mad412
AppellantKasturi
RespondentVenkatachalapathi
Cases ReferredTinnappa v. Murugappa I.L.R.
Excerpt:
evidence act - act i of 1872, section 115--estoppel--civil procedure code--act xiv of 1882, section 237--prior encumbrance--notice to executing decree-holder. - .....but aundi chakrapani chetti who held the prior mortgage. it is admitted, however, that this man was plaintiff's partner, and that plaintiff was aware of the existence of the prior mortgage of which he took an assignment some years after the sale.3. it appears to us to be immaterial that a suit by chakrapani chetti himself might have been successful. the ground of decision is that it was plaintiff himself who led intending purchasers to believe that the property was offered for sale free of encumbrances, and that plaintiff by concealing the existence of a lien, of which he was aware, led the purchaser to pay full value for the property. he is, therefore, estopped from now denying that the sale took place free of encumbrances (section 115, indian evidence act). under section 237 of the.....
Judgment:

1. There can be no doubt that if plaintiff himself had been the holder of the prior encumbrance when he brought the property to sale he would be subsequently estopped from enforcing the lien of which he had given no notice. See Agarchand Gumanchand v. Rakhma Hanmant I.L.R. 12 Bom. 678, followed by this Court in Jaganatha v. Gangi Reddi I.L.R. 15 Mad. 303, Nursing Narain Singh v. Roghoobur Singh I.L.R. 10 Cal. 609, Tinnappa v. Murugappa I.L.R. 7 Mad. 107. The decision in Banwari Das v. Muhammad Mashiat I.L.R. 9 All. 690 is not in conflict with these decisions, since in that case it was not attempted to be shown that the provisions of Section 287 of the Code of Civil Procedure had not been complied with vide judgment of edge, C.J., page 702. All that was urged was that plaintiff as a bidder had not personally announced his encumbrance.

2. It is urged in this suit that it was not plaintiff but Aundi Chakrapani Chetti who held the prior mortgage. It is admitted, however, that this man was plaintiff's partner, and that plaintiff was aware of the existence of the prior mortgage of Which he took an assignment some years after the sale.

3. It appears to us to be immaterial that a suit by Chakrapani Chetti himself might have been successful. The ground of decision is that it was plaintiff himself who led intending purchasers to believe that the property was offered for sale free of encumbrances, and that plaintiff by concealing the existence of a lien, of which he was aware, led the purchaser to pay full value for the property. He is, therefore, estopped from now denying that the sale took place free of encumbrances (Section 115, Indian Evidence Act). Under Section 237 of the Code of Civil Procedure the plaintiff as execution-creditor was bound to specify the judgment-debtor's interest so far as be had been able to ascertain it. Tinnappa v. Murugappa I.L.R. 7 Mad. 107.

4. On this ground the decrees of the Courts below must be reversed so far as second defendant is concerned and the plaintiff's suit dismissed with costs throughout.


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