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Gungadhur Pershad NaraIn Singh Vs. Mohabir Pershad NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal599
AppellantGungadhur Pershad NaraIn Singh
RespondentMohabir Pershad NaraIn Singh
Cases ReferredPergash Koer v. Mahabir Pershad Narain Singh
Excerpt:
mortgage - foreclosure, suit for--conditional sale--regulation xvii of 1806--transfer of property act (iv of 1882), section 2, clause (c) and sections 86, 87--procedure. - .....xvii of 1806 was served upon the mortgagor by the mortgagee on the 9th of july 1881, so that the year of grace from the date of that notice would expire on the 10th of july 1882.2. this suit was instituted on the 24th january 1885. the plaintiff asked for a declaration that the defendant's right to redeem the mortgaged premises should be foreclosed. various defences were pleaded by the defendant, all of which have been disposed of adversely to him by the lower courts. mr. gregory in special appeal has urged only one point before us, and that is a point of not inconsiderable importance. it was urged before the lower appellate court, and was dealt with by the district judge. the point is this, that, as the year of grace expired on the 10th of july 1882, and the transfer of property act.....
Judgment:

1. The defendant In this case borrowed Rs. 299 from the plaintiff, and as security for the repayment of the loan executed on the 6th April 1881 a deed of conditional sale covenanting to repay the mortgage debt on the 13th May 1881. The money was not repaid on that date, and a notice in compliance with the provisions of Sections 7 and 8 of Regulation XVII of 1806 was served upon the mortgagor by the mortgagee on the 9th of July 1881, so that the year of grace from the date of that notice would expire on the 10th of July 1882.

2. This suit was instituted on the 24th January 1885. The plaintiff asked for a declaration that the defendant's right to redeem the mortgaged premises should be foreclosed. Various defences were pleaded by the defendant, all of which have been disposed of adversely to him by the lower Courts. Mr. Gregory in special appeal has urged only one point before us, and that is a point of not inconsiderable importance. It was urged before the lower appellate Court, and was dealt with by the District Judge. The point is this, that, as the year of grace expired on the 10th of July 1882, and the Transfer of Property Act came into operation on the 1st July 1882, the proceedings taken by the plaintiff should be regulated by the procedure laid down in Sections 86 and 87 of the Transfer of Property Act, and not by the procedure prescribed by Regulation XVII of 1806. In support of this contention Mr. Gregory relied upon two cases which were cited and commented upon in the lower appellate Court, namely, a Full Bench case of the Allahabad High Court in Ganga Sahai v. Kishen Sahai 6 A. 262 and the recent Full Bench decision of this Court in Bhobo Sundari Debi v. Rakhal Chunder Bose 12 C. 583. He also relied upon the case of Baij Nath Pershad Narain Singh v. Moheswari Pershad Narain Singh 14 C. 451, decided by Wilson and Beverley, JJ. Neither of these cases is exactly in point. In the Allahabad ease the mortgage by conditional sale was dated 3rd July 1877, and the foreclosure suit was instituted under the provisions of the Transfer of Property Act. In the Calcutta Full Bench case the mortgage by conditional sale was dated 4th September 1876, and the foreclosure suit was instituted on 18th December 1883. In the case before Wilson and Beverley, JJ. not only had proceedings been taken under Regulation XVII of 1806, but the year of grace therein referred to bad actually expired before the Transfer of Property Act came into force. Mr. Justice Wilson, in delivering the judgment of the Court, says: 'The next question is one of more general importance. It was contended that in this case the suit, having been brought after the passing of the Transfer of Property Act, was governed by that Act, and that the form of the decree to be given in the case ought to be the form of a foreclosure decree prescribed by that Act in Sections 86 and 87. Several cases were referred to in support of that contention.' Then the learned Judge goes on to mention the cases which were referred to. Two of them I have already named, and the third is Pergash Koer v. Mahabir Pershad Narain Singh 11 C. 582. The learned Judge then proceeds to say: 'All these cases differ materially from the present for this reason: In the present case, before the Transfer of Property Act passed, proceedings had been taken under the Regulation. They were valid and effectual proceedings, and they had arrived at a close, that is to say, the period of grace had expired. Now, when that period of grace expired, the Regulation being still in force, what were the rights of the parties? The mortgagee acquired an immediate right to have a decree declaring the property to be his absolutely. It did not become his absolutely without a decree, but his right to such a decree immediately accrued. On the other hand the mortgagor, the moment the period of grace expired, ceased to have any right of redemption. These rights and liabilities appear to us to differ essentially from the matters which in the other cases were held to be mere matters of procedure. It is impossible to say, in our judgment, that anything can be described as a light or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability, if these words do not apply to an actually existing right to an immediate decree declaring the property to be absolutely the property of the mortgagee: and, on the other hand, the entire loss of any right to redeem the property.' Upon the strength of that decision Mr. Gregory argued that the saving clause in Section 2 of the Transfer of Property Act would not avail to assist the plaintiff's case. That clause is clause (c), which says: 'Any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.' Mr. Gregory urged that the right of the plaintiff was not complete until the expiration of the year; that his right to a foreclosure decree was not complete until the expiration of the year of grace; and that therefore he had acquired no right nor had the debtor incurred any liability until the expiration of the year; and that the defendant was saved, as it were, by the fact that the Transfer of Property Act came into force ten days before the expiration of the year of grace.

3. We think that this contention ought not to prevail. It is true that the full and complete right of the mortgagee had not accrued; but we think it impossible to say that he had acquired no right, for at the time the Transfer of Property Act came into force he had acquired the right to bring a suit under the provisions of the Regulation of 1806 at the expiration of the year of grace, and the mortgagor was under a liability to part with his property upon a suit being brought at the expiration of that year.

4. The appeal is accordingly dismissed with costs.


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