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Denibeswar Sarma Bara Thakur Vs. Bethoram Saikia and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.648
AppellantDenibeswar Sarma Bara Thakur
RespondentBethoram Saikia and ors.
Excerpt:
evidence act (i of 1872), section 116 - estoppel--mortgage--redemption--mortgagee in possession, whether estopped from denying right of purchaser of mortgaged property to redeem. - .....district judge, first, whether the mortgage was valid and, if not, what would be the rights of the parties; secondly, whether kaliprosad was a lunatic and brojonath could act as his guardian, and thirdly, whether brojonath was the brother and the heir of kaliprosad or not. there admittedly ware other points raised by the appellant into which the court of first instance also did not go.2. we think that the judgment and decree of the lower appellate court must be set aside and the appeal re-heard, the whole matter being open to the judge who hears the appeal. costs of this appeal will abide the result.
Judgment:

1. In this case we are of opinion that the judgment of the lower Appellate Court is not in accordance with law. In stating the point for determination the learned District Judge remarked that it was whether the suit had been rightly decreed and gave his opinion that the answer to this was in the affirmative. He then deals with the question of estoppel under Section 116 of the Evidence Act, which does not arise in the way in which he has dealt with it. The issues raised in the first Court were quite explicit and showed what the real points at issue between the parties were. Section 116 of the Evidence Act would have no application to the point whether the plaintiff has made out his title to redeem this land by virtue of his purchase from Brojonath. The other points have not been touched by the learned District Judge, first, whether the mortgage was valid and, if not, what would be the rights of the parties; secondly, whether Kaliprosad was a lunatic and Brojonath could act as his guardian, and thirdly, whether Brojonath was the brother and the heir of Kaliprosad or not. There admittedly ware other points raised by the appellant into which the Court of First Instance also did not go.

2. We think that the judgment and decree of the lower Appellate Court must be set aside and the appeal re-heard, the whole matter being open to the Judge who hears the appeal. Costs of this appeal will abide the result.


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