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Muktakeshi Pal Vs. Ramani Mohan Bhattacharya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal195
AppellantMuktakeshi Pal
RespondentRamani Mohan Bhattacharya and ors.
Cases ReferredSurjiram Marwari v. Barhamdeo Persad
Excerpt:
- .....arises in this appeal is whether the mortgagee, after relinquishing his claim on a portion of the mortgaged property, can throw the whole, burden of the mortgaged debt on the remainder of the property. the learned judge has held that he cannot. it is contended on behalf of the appellant that the mortgagee is entitled to pursue his remedy for the entire mortgaged property. what happened in this case was that the mortgagee did not desire to proceed against certain portions of the mortgaged properties which were purchased by her husband and her husband's brother at sales by which only the equity of redemption passed to them.2. the only relevant authority that has been cited in favour of the contention of the appellant is that of the full bench case of perumal pillai v. raman chetty [1917].....
Judgment:

1. The sole question that arises in this appeal is whether the mortgagee, after relinquishing his claim on a portion of the mortgaged property, can throw the whole, burden of the mortgaged debt on the remainder of the property. The learned Judge has held that he cannot. It is contended on behalf of the appellant that the mortgagee is entitled to pursue his remedy for the entire mortgaged property. What happened in this case was that the mortgagee did not desire to proceed against certain portions of the mortgaged properties which were purchased by her husband and her husband's brother at sales by which only the equity of redemption passed to them.

2. The only relevant authority that has been cited in favour of the contention of the appellant is that of the Full Bench case of Perumal Pillai v. Raman Chetty [1917] 40 Mad. 968 in which the Madras Court differed from the decisions of this Court holding a contrary view upon their construction of the provisions of the Transfer of Property Act. We are, however, bound by the series of decisions of this Court commencing with Surjiram Marwari v. Barhamdeo Persad [1905] 1 C.L.J. 337 in which it has been invariably held that the rule which has been adopted by the District Judge in this case is the equitable rule to follow in such cases. The appeal, therefore, must be dismissed as regards this contention raised before us.

3. Another contention was raised that one of the mortgagors has become insolvent and his interest has vested in a Receiver and he cannot raise any objection to the execution of the decree. This question need not be decided as there is another person who has obtained the equity of redemption in the properties which are sought to be sold by transfer from the mortgagors and at her instance the question may be gone into.

4. On these grounds the appeal must be dismissed with costs. We assess the hearing fee at three gold mohurs.


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