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Ana Pattar and anr. Vs. Swaminatha Pattar Kariakar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.935a
AppellantAna Pattar and anr.
RespondentSwaminatha Pattar Kariakar
Cases Referred and Balvant Babaji Dhonde v. Hirachand Gulab Chand Gutjar
Excerpt:
mortgage - redemption--suh-mortgagee--decree for sale of mortgage-interest--construction of decree--sale certificate--equity of redemption, whether subsisting. - - we agree with the subordinate judge that the transfer is good. 3. the decree in the case failed to describe the property as a mortgage interest......kumul bhuttacharjee v. surut chunder doss biswas 22 w.r. 408 and balvant babaji dhonde v. hirachand gulab chand gutjar 27 b.k 334.4. we think, therefore, what passed by the sale was the usufructuary mortgage interest. the plaintiffs are entitled to redeem. the usual mortgage decree will be drawn up. the plaintiffs will pay rs. 2,700 for redemption. three months will be allowed for payment. the plaintiffs will have their costs throughout. the memorandum, of objections is not moved and is dismissed with costs.
Judgment:

1. The 1st plaintiff is the purchaser from the original mortgagor. Objection is taken to the bona fides of the transfer. But it was not pressed before the 1st Court. We agree with the Subordinate Judge that the transfer is good.

2. The principal question argued in the case was whether the equity of redemption was subsisting at the date of the suit. The defendant who was a sub-mortgagee sued on his mortgage making the original mortgagor a pro-forma defendant and prayed for a decree against the mortgage interest mortgaged to him and got a decree accordingly.

3. The decree in the case failed to describe the property as a mortgage interest. We think we are entitled to construe it (and we do so without hesitation) as a decree only against the mortgage interest. See Srinivasa Rao Saheb v. Yamuna Bai Ammal 16 M.L.J. 50 and Ram Chander v. Kendo 22 A.K 442. The decree-holder sought to take advantage of the vagueness in the description and managed to retain the same vagueness of description in the sale proclamation and the sale certificate. He is himself the purchaser. There can be no dispute as to what was the property to be sold. We are not precluded from reading the sale certificate as comprising' only the mortgage interest. See Gowree Kumul Bhuttacharjee v. Surut Chunder Doss Biswas 22 W.R. 408 and Balvant Babaji Dhonde v. Hirachand Gulab Chand Gutjar 27 B.K 334.

4. We think, therefore, what passed by the sale was the usufructuary mortgage interest. The plaintiffs are entitled to redeem. The usual mortgage decree will be drawn up. The plaintiffs will pay Rs. 2,700 for redemption. Three months will be allowed for payment. The plaintiffs will have their costs throughout. The memorandum, of objections is not moved and is dismissed with costs.


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