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Kristo Mohinee Dossee and ors. Vs. Kaliprosono Ghose and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1882)ILR8Cal402
AppellantKristo Mohinee Dossee and ors.
RespondentKaliprosono Ghose and ors.
Cases ReferredRam Dutt Singh v. Horakh Narain Singh I.L.R.
execution - suit to stay execution against certain property, until judgment-creditor had proceeded against other property--cause of action--civil procedure code (act x of 1877), section 244, clause (c)--part satisfaction. - .....subject to all incumbrances by a and b. then kaliprosono bought up c's mortgage. but before the sale to kaliprosono, a had sued b for the amount, which a had on the first occasion paid as b's quota of revenue to save the share from sale; and in that suit a claimed to have a lien on b's interest in the share.3. at the time of kaliprosono's purchase, a had obtained a decree in that suit which made b personally liable. but the court which made the decree refused to declare any lien. against that decree a appealed to this court after kaliprosono's purchase. kaliprosono was not made a respondent to that appeal, though of course a knew of his having purchased the share. about two years after kaliprosono's purchase, this court, apparently with the consent of b (whose interest to dispute the.....

Pontifex, J.

1. The circumstances of this case may be concisely stated as follow:

2. A and B were co-sharers in a share of an estate, with respect to which share the Collector had ordered a separate account to be kept. B failing to provide his quota of the revenue, A raised money on a mortgage to C of his own interest, and paid the revenue on the share and so saved the share belonging to A and B from sale under Section 131 of Act XI of 1859. Subsequently, both A and B failed to pay the revenue due on the share, and the share was sold under Section 13 to defendant Kaliprosono Ghose, who under Section 542, took subject to all incumbrances by A and B. Then Kaliprosono bought up C's mortgage. But before the sale to Kaliprosono, A had sued B for the amount, which A had on the first occasion paid as B's quota of revenue to save the share from sale; and in that suit A claimed to have a lien on B's interest in the share.

3. At the time of Kaliprosono's purchase, A had obtained a decree in that suit which made B personally liable. But the Court which made the decree refused to declare any lien. Against that decree A appealed to this Court after Kaliprosono's purchase. Kaliprosono was not made a respondent to that appeal, though of course A knew of his having purchased the share. About two years after Kaliprosono's purchase, this Court, apparently with the consent of B (whose interest to dispute the matter had of course ceased, or father whose interest it then was to concede the question), declared a lien in favour of A on B's former interest. A assigned this decree to the defendant Rutnessur. B died leaving the plaintiff his representative. Rutnessur proceeded to execute his decree against other property of B in the mofussil in the possession of the plaintiff. The plaintiff in those execution-proceedings insisted that Rutnessur was bound to proceed first against the original interest of B in the share originally held by A and B and which had been purchased by Kaliprosono as before mentioned. This question was decided against the plaintiff, and is therefore res judicata between the plaintiff' and Rutnessur. Afterwards Retnessur's execution-proceedings in the mofussil dropped. Kaliprosono and Rutnessur subsequently entered into an agreement, by which Rutnessur agreed, if possible, to execute his decree against property of B in the possession of his representatives, and (if it could be avoided) not as against the original interest of B in the share originally held by A and B and then in Kaliprosono's possession. As an inducement or consideration for this agreement, Kaliprosono gave the defendant Hurry Churn Bose, as the nominee of Rutnessur, a patni in the share originally held by A and B. Rutnessur then sought to execute his decree against property of B in Calcutta in the plaintiff's possession as B's representative.

4. Thereupon the plaintiff institutes this suit against Kaliprosono, Hurry Churn, and Rutnessur, whereby she asks for a declaration, if Rutnessur executes his decree against the Calcutta properties, that the plaintiff is then entitled to stand in the shoes of Rutnessur, and to be recouped both by Kaliprosono personally and also out of the original instalment of B in the share originally held by A and B; and the plaintiff asked in the meantime for an injunction to restrain Rutnessur's execution against the Calcutta property.

5. Now, so far as Rutnessur is concerned, it is already res judicata, that Rutnessur is entitled, if he so chooses, to execute against the Calcutta property; and if plaintiff claims, that the patni given by Kaliprosono to Hurry Churn should be treated as part-payment to Rutnessur, such question ought to be decided on the execution-proceedings, as directed by Section 244 of the Procedure Code. The mere existence of the agreement between Kaliprosono, Rutnessur and Hurry Churn does not entitle the plaintiff to join them as co-defendants in this suit, or give this Court jurisdiction to try the case. Kaliprosono and Rutnessur were quite entitled as between themselves to come to the arrangement. That arrangement can neither bind nor prejudice the plaintiff. Therefore, Rutnessur and Hurry Churn were not necessary parties to the plaintiff's suit against Kaliprosono.

6. But, so far as Kaliprosono is concerned, we think this suit can only be treated as a suit to establish a charge or lien in land out of Calcutta; and therefore this Court had no jurisdiction to try it.

7. It is true that Mr. Pugh, on the assumption that A's payment on B's account gave A a lien on B's interest, tried to put his case as high as this: That person claiming under B, but subject to incumbrances, would he personally liable to pay this debt; and if so, the plaintiff would be entitled to sue Kaliprosono in this Court, he being a resident of Calcutta.

8. Mr. Pugh attempted to put his case on the footing of a purchase of an equity of redemption, and the contract between the mortgagor and the purchaser stating the amount of the money due on the mortgage subject to which the sale was made, and the purchase-money being estimated on that footing. Even if in such a case equity would fasten on the conscience of the purchaser so as to make him personally liable to indemnify his vendor, the mortgagor, it is sufficient to say the present is an entirely different case.

9. Under Section 54, Kaliprosono undoubtedly took subject to incumbrances; but he purchased not from the mortgagor, but from the Government, the paramount vendor. There was nothing to show him that anything was due from B to A, and no notice of this alleged lien was given. Under these circumstances, we think even if a lien existed, it would be preposterous to make Kaliprosono personally answerable.

10. We are, therefore, of opinion that the plaintiff's suit was rightly dismissed.

11. It is thus unnecessary for us to deal with the question whether the payment by A on behalf of B gave A a lien on B's interest on the share originally held by A and B, which would bind B's interest in the hands of a purchaser under Sections 13 and 54 of Act XI of 1859. This question was determined affirmatively, as already mentioned, by a Division Bench of this Court in the suit between A and B; that decision having, as I have before said, been virtually made by consent. That decision, whether by consent or otherwise, was founded on the decision of another Bench of this Court--the case of Seyd Enayet Hossein v. Muddun Moonee Shahoon 14 B.L.R. 155; S.C. 22 W.E. 411 which has also been followed and extended by a still later case Ram Dutt Singh v. Horakh Narain Singh I.L.R. 6 Cal. 549. Had it been necessary to deal with this question, we should certainly have referred it to a Full Bench; for we are not, as at present advised, at all satisfied as to the correctness of those decisions. They, no doubt, enunciate what at the first blush seems to be an attractive and catching equity; but it is difficult to see on what foundation such an equity could rest. Mr. Pugh has attempted to support the cases referred to, on the authority of certain Irish cases, which are treated as insurance cases. It is sufficient with respect to those cases to say, that there is a substantial difference between them and the present case. In all of those cases the person who claimed the lien was previously interested in the estate which his payment went to save. But, in the present case, A had no interest in B's share of the share originally held by A and B; and it may be remarked that none of the Irish cases go the length of establishing a personal liability.

12. The Irish cases, in fact, only decide exactly what the last paragraph of Section 9 of Act XI of 1859 provides.

13. If A had been entitled to a previous lien on B's interest, then he could have tacked the amount paid by him to save the interest from sale. If he had no such previous lien, then, as at present advised, we think his rights would be those provided for by the preceding portion of Section 9,--that is, he may recover from the defaulting proprietors personally.

14. It appears to us, that whenever it may be necessary to settle this question, it ought to be referred to a Full Bench. In the present case it is unnecessary, and we dismiss the plaintiff's appeal with costs on scale 2.

1[Section 13: Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue, the Collector or other Officer as aforesaid, in the first place shall put up to sale only that share or those shares of the estate from which, according to the separate accounts, an arrear of revenue may be due. In. all such cases notice of the intention of excluding the share or shares from which no arrear is due, shall be given in the advertisement of sale prescribed in Section 6 of this Act. The share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion or the aggregate of the several separate portions of jumma assigned thereto.]

Sale of separate shares.

2 [Section 54: When a share or shares of an estate may be sold, under the provisions of Section 13, or Section 14, the purchaser shall acquire the share or shares subject to, all encumbrances, and shall not acquire any rights which were not possessed by the previous owner or owners.]

Rights of purchasers of shares of estate.

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