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Gobind Pershad Vs. Harihar Charan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal60
AppellantGobind Pershad
RespondentHarihar Charan
Cases ReferredNattu Krishnama Chariar v. Annangara Chariar
Excerpt:
mortgage - whether suit is maintainable on prior mortgages without reference to subsequent mortgage over the same property--transfer of property act, (iv of 1882) section 85. - .....but that he had not sued on it in that suit. he did not in his plaint ask for a decree for the sale of property covered by the six mortgages, subject to the later mortgage, and, in our opinion he would certainly not have been entitled to ask for any such relief. all that he sought for in the suit was a decree on his six mortgage bonds for the recovery of the debts due under them by sale of the property mortgaged. this case, therefore, of the bombay high court on which the subordinate judge has relied has, in our opinion, no bearing on the present case. in that case, the mortgagee sought to recover the sum due on the later mortgage by sale of the property subject to the prior mortgage and the learned judges held that the mortgagee was not entitled to bring the property to sale' in.....
Judgment:

Brett and Vincent, JJ.

1. The present appeal arises out of a suit brought by the plaintiff to enforce six mortgage bonds, all covering the same property, and also, for redemption of a prior mortgage held by the defendants Nos. 2, 3 and 4, covering only a portion of this property. It appears that the property, the subject of these six mortgages, was a 3 anna 4 dam share of village Satwaj appertaining to estate Ramporeteni. This share on a partition of the village being made by the Collector, was converted into a separate estate in 1903 or 1904. In consequence some of the earlier mortgages describe the property as a 3 annas 4 dam share of village Satwaj appertaining to estate Ramporeteni, while those of later dates describe it as 16 annas of estate Towji No. 693. The defendant No. 1, the mortgagor, did not dispute the mortgages or that the debts claimed thereunder were due from him, but he pleaded that the clause relating to compound interest was not enforceable as it was in the nature of a penalty. The defendants, Nos. 2 to 4, who are the purchasers of a 1 anna 4 dam share out of the 3 anna 4 dam share of Mouza Satwaj, really contested the suit, and they appear to have in their written statement raised every possible objection to the plaintiff's claim, alleging even that the mortgages were collusive and that the mortgagor had no title to the property mortgaged. Both parties went into evidence to support their respective allegations and the Subordinate Judge has dealt with the case in a very careful judgment. In the first instance, he has considered the plea advanced by the defendant No. 1 that compound interest cannot be recovered, and has held that that plea has no substance, and that, under the terms of the mortgage-deeds, the plaintiff is entitled to recover compound interest. That finding is not disputed in this appeal as the defendant No. 1 has not appeared to contest the decision of the lower Court on that point. The Subordinate Judge has then dealt in detail with the objections taken by the defendants Nos. 2 to 4 and has decided all the issues raised on these points in favour of the plaintiff. In this appeal, the findings of the Subordinate Judge are only disputed with reference' to Ms conclusion on issue No. 9. 'His conclusions on the other issues have not been assailed. The learned Subordinate Judge, however, after deciding, all those objections in the plaintiff's favour held that the plaintiff's suit could not succeed, on the ground-that, as the plaintiff had a seventh mortgage over the same property subsequent to the six mortgages on which the suit had been brought, therefore he was bound to sue on that mortgage in the present suit, and that, as he; had omitted to do so, the suit must fail. He accordingly dismissed the plaintiff's suit, but, holding that all the objections raised by the defendants were unsound, he ordered that the plaintiff should only pay one half the costs in the suit.

2. The plaintiff has appealed and the main point in support of the appeal which has been argued is, that the Lower Court was wrong in the view which it took that the plaintiff's suit was not maintainable by reason of the fact that he had not included in it his claim under the seventh and latest mortgage. On behalf of the respondents an objection has been taken to the findings of the Subordinate Judge on the 4th issue, that the defendants Nos. 2 to 4 are only entitled to be paid by the plaintiff in redemption of their mortgage on the 1 anna 4 dam share the sum of Rs. 1,000.

3. The learned Subordinate Judge, in arriving at the conclusion that the suit was not maintainable, relied on the following cases. The first is the case of Keshavram, Dulavram v. Ranchhod Fakira (1905) I.L.R. 30 Bom. 156. In that case what was laid down was that where a mortgagee holds two mortgages on the same property executed by the same person he cannot maintain a suit to recover the sum due on the later mortgage only by sale of the property subject to the prior mortgage. In the present case, the plaintiff brought the suit on the prior mortgages to recover the mortgage debts due on them, and at the same time stated that he had a seventh mortgage but that he had not sued on it in that suit. He did not in his plaint ask for a decree for the sale of property covered by the six mortgages, subject to the later mortgage, and, in our opinion he would certainly not have been entitled to ask for any such relief. All that he sought for in the suit was a decree on his six mortgage bonds for the recovery of the debts due under them by sale of the property mortgaged. This case, therefore, of the Bombay High Court on which the Subordinate Judge has relied has, in our opinion, no bearing on the present case. In that case, the mortgagee sought to recover the sum due on the later mortgage by sale of the property subject to the prior mortgage and the learned Judges held that the mortgagee was not entitled to bring the property to sale' in satisfaction of the later mortgage and at the same time to retain on the property the mortgage lien under the first mortgage. This is not what the mortgagee in the present suit seeks to do and the case therefore in question is no authority for the view which the learned Subordinate Judge has taken.

4. The second case relied on is that of Dorasami v. Venkataseshayyar (1901) I.L.R. 25 Mad. 108. That case is, however, entirely different from the present case. There the plaintiff, who was a simple mortgagee of certain land, also held a subsequent usufructuary mortgage over the same land, and he brought a suit on the earlier mortgage with the object of selling the mortgage property subject to the lien under the usufructuary mortgage which would have entitled him to retain possession of the property sold. The learned Judge held that the plaintiff was not entitled to bring a suit to enforce the prior mortgage subject to the subsequent mortgage existing in his favour. In the present case, however, there is no prayer on behalf of the plaintiff for a decree for sale of the property under the six mortgages subject to the seventh mortgage.

5. In the case of Bhagwan Das v. Bhawani (1903) I.L.R. 20 All. 14, on which the learned Subordinate Judge also relies, the facts are similar to those in the case of Dorasami v. Venhataseshayyar (1907) I.L.R. 30 Mad. 353 already referred to. There the plaintiff having several simple mortgages over the properties and an usufructuary mortgage over one of them brought a suit to bring to sale all the properties covered by the simple mortgages subject to the usufructuary mortgage held by him, and the learned Judged held that he was not entitled to bring such a suit. This, however, as we have already observed, is not the case in the suit before us.

6. In the case of Nattu Krishnama Chariar v. Annangara Chariar (1907) I.L.R. 30 Mad. 353, the learned Judges distinctly stated in their judgment that there was nothing in law to prevent a plaintiff from bringing a suit on a prior mortgage without reference to a subsequent mortgage held by him and obtaining a decree for sale of the mortgaged property in satisfaction of the first mortgage and free from the second mortgage. So far as we are able to judge from the pleadings this is what the plaintiff has asked in the present case. He has no doubt stated that he holds a seventh mortgage on the property, but he has asked for the sale of the property in satisfaction of his mortgage debt on the six prior mortgages and this sale, under the law, must be free from the subsequent mortgage. What effect the sale of this property in satisfaction his six prior mortgages will have on his right or power to recover under the seventh mortgage can only be determined in a suit (supposing the plaintiff brings one) on the seventh mortgage. In our opinion, there is nothing in the law nor is there any authority to support the view taken by the learned Subordinate Judge that, when a plaintiff has seven mortgages on the same property, he is not entitled to bring a suit on the six earlier mortgages without joining in that suit his claim under the seventh mortgage. In our opinion, therefore, the finding of the Subordinate Judge in this point cannot be maintained and the ground on which he refused to decree the plaintiff's suit can not be supported.

7. We have now to consider the point taken on behalf of the respondents. It is urged that the Subordinate Judge was wrong in the view which he took that in order to recover the mortgage of the defendants Nos. 2 to 4 on the 1 anna 4 dam share, of Mouza Satwaj, the plaintiff was 'only liable to pay the sum of Rs. 1,000. It has been contended that the plaintiff ought to be directed to pay not only the sum of Rs. 1,000, for which the defendants Nos. 2 to 4 purchased the property on the 2nd October 1907, in satisfaction of their mortgage decree for Rs. 817, but also the sum of Rs. 621-1-3, the amount due to them from Jhamala Koer on account of a decree obtained against her in respect of sums paid by them for maintenance to Parbati Koer, the mother of Jamala Koer. In support of this contention, the learned pleader for the respondents has invited our attention to the sale certificate obtained by his client on the 2nd October 1907. In that certificate all that is stated is that the share was put up to sale in satisfaction of a decree obtained by the defendants Nos. 2 to 4, and at the same time it was mentioned that those defendants had brought a, suit to recover Rs. 653-11-6, besides costs against the same judgment-debtor, which suit at the time of the sale was pending disposal. It is suggested that, in consequence of that recital in the certificate of sale, it must be held that the defendants Nos. 2 to 4, as they had to pay that sum on behalf of the original properties of the share, are entitled to recover it from the plaintiff as a mortgage or charge on that share. The learned Subordinate Judge has held that the defendants Nos. 2 to 4 are not entitled to recover that additional sum and we think that the view which he has taken is correct. In the first place, there is nothing to show whether that debt was a mortgage debt or not, and in the second place, as the learned Subordinate Judge has pointed out, all that the decree would have given the defendants was a right to sell the property over again in order to recover the debt. In these circumstances, we think that the learned Subordinate Judge was right in holding that, in the present suit, he could not direct that the plaintiff should redeem the mortgage of the defendants Nos. 2 to 4 by paying that sum of Rs. 621-1-3 in addition to the sum of Rs. 1,000.

8. The result, therefore, is that we set aside the judgment and decree of the lower Court, and, as we hold, differing from that Court, that the plaintiff's suit was maintainable, we direct that an account be taken of the amount due to' the plaintiff on his six mortgages, and that a decree be passed to the effect that, if that amount be not paid within six months from the date of the preparation of the decree, the mortgaged property will be liable to be sold. The plaintiff will also be bound to pay to the defendants Nos. 2 to 4 the sum of Rs. 1,000 due to them, and, if that sum be paid within the time aforesaid, the mortgaged property will be sold in satisfaction of the amount due to the plaintiff under his mortgage decrees plus the amount paid by him for redemption to the defendants Nos. 2 to 4. If the sum of Rs. 1,000 be not paid by the plaintiff within the time stated, the share of 1 anna 4 dams purchased by defendants Nos. 2 to 4 will be expected from sale, and the plaintiff will be entitled to recover his mortgage debt by sale only of the 3 annas 4 dams share less the 1 anna 4 dams share of the defendants Nos. 2 to 4.

9. The plaintiff-appellant is entitled to recover his costs of his appeal from the defendants Nos. 2 to 4 and of the Lower Court from all the defendants. Such costs will be added to the mortgage security.


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