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Chandra Moyi Chowdhurani Vs. Mr. C.B. Gregson and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.465
AppellantChandra Moyi Chowdhurani
RespondentMr. C.B. Gregson and ors.
Excerpt:
construction of document - mortgage or sale--intention of parties transfer of property act (iv of 1882), section 58--interest act (xxxii of 1839)--mortgage not providing for interest--discretion of court to allow interest--civil procedure code (act v of 1908), section 21--jurisdiction--'appeal, second, question of jurisdiction whether can be raised in. - .....words used in the document bring the case exactly within the definition of a mortgage by way of conditional sale contained in section 58 (c) of the transfer of property act. it is said that, notwithstanding that it falls within that definition, the intention of the parties, as gathered from the instrument, was to make an out-and-out sale subject to the right contained therein of the mortgagor to pay the money within pous next and to get the property released, and, therefore, the document is an instrument of sale and not of mortgage. it is quite clear that that is not so. the parties used the word kot kobala, which is an ordinary word used to indicate a mortgage by way of conditional sale; and where the parties use words that indicate a mortgage by way of conditional sale and then give.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against the decision of the learned District Judge of Rajshabye, dated the 7th September 1916, affirming the decision of the Subordinate Judge of the same place. The plaintiff brought the suit to recover possession of certain property on the ground that she had acquired it; alternatively, she prayed for a decree on the footing that she was the mortgagee of the property. The main point in the appeal turns on this: Is the plaintiff the mortgagee under the document or is she a purchaser? The document is called by the parties as kot kobala and the plaintiff states that she got this kot kobala executed to the following effect: The transfer, the ostensible sale in this kot kobala, was subject to the condition that, on payment being made within the month of Pous next, the sale should become void and that if, on the other hand, there was a failure to pay the money within the said time, the mortgagee should be entitled to bring the properties mentioned in the said kot kobala into her possession by resorting to law. It is quite clear that the words used in the document bring the case exactly within the definition of a mortgage by way of conditional sale contained in Section 58 (c) of the Transfer of Property Act. It is said that, notwithstanding that it falls within that definition, the intention of the parties, as gathered from the instrument, was to make an out-and-out sale subject to the right contained therein of the mortgagor to pay the money within Pous next and to get the property released, and, therefore, the document is an instrument of sale and not of mortgage. It is quite clear that that is not so. The parties used the word kot kobala, which is an ordinary word used to indicate a mortgage by way of conditional sale; and where the parties use words that indicate a mortgage by way of conditional sale and then give all the terms in the document that are consistent with the terms of a mortgage by way of conditional sale, it seems to me that the proper construction is that the document is a mortgage by way of conditional sale. The case is, I think, an extremely simple and clear one. The authorities which have been cited are of no assistance at all.

2. The other point in the appeal is this: The mortgage by way of conditional sale does not provide for interest. It is said that the Court has a discretion to award interest in accordance with the terms of the Interest Act and that that interest along with the principal should be made a charge on the property. That may be so. But in a case like this, such a matter ought to have been raised in the Court below and evidence ought to have been adduced and proper findings arrived at by the Judge, in order to satisfy himself as to whether or not he should exercise the discretion which the law vested in him either to allow or to disallow interest in respect of this sum. No point like that having been raised before the learned Judge of the lower Appellate Court, it is much too late now before us, we not having the evidence nor the attending circumstances before us, to raise the point that we should allow interest on this sum.

3. The appeal must, therefore, stand dismissed with costs.

4. As to the cross-objection preferred by the respondent the Midnapur Zemindary Company, Limited, namely, the want of territorial jurisdiction of the Subordinate Judge of Rajshahye, I think it is quite clear that the Midnapur Zamindary Company did not raise the point at the earliest possible moment and, therefore, under Section 21 of the Code of Civil Procedure the question that the Court had no territorial jurisdiction cannot be gone into in this Court. The cross objection is therefore, dismissed with costs.

Panton, J.

5. I agree.


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