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Mastulla Mandal Vs. Jan Mamud Sha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal12
AppellantMastulla Mandal
RespondentJan Mamud Sha
Cases ReferredGoluk Chunder Das v. Bam Sunker Dutt
Excerpt:
bengal tenancy act (viii of 1886),sections 165, 167 - sale with power to avoid all incumbrances--procedure for annulling incumbrances whether necessary, when the incumbrancer and the purchaser are one and the same person--sale for arrears of rent--transfer of property act (vi of 1882), sections 90, 101--mortgage lien--extinguishment of charges--personal covenant by mortgagor. - .....judgment debtor.2. an objection was taken by the judgment-debtor appellant in this court, that the decree-holder, mortgagee, was bound, under the terms of his mortgage decree, to put up to sale in the first instance the mortgaged property.3. the munsif gave effect to that objection. the subordinate judge has overruled it, and allowed the mortgagee decree-holder to take out execution against the other properties of the mortgagor.4. the judgment-debtor, mortgagor, appeals to this court and the objection which was urged in the courts below is urged here that inasmuch as the mortgagee, who was the purchaser of the mortgaged premises at the sale for arrears of rent, did not, under section 167 of the bengal tenancy act, take proceedings for setting aside his own incumbrance, that incumbrance.....
Judgment:

1. The decree-holder, respondent in this Court, is the mortgagee of a certain property belonging to the judgment-debtor appellant. The respondent appears to have obtained a decree against the appellant on the basis of his mortgage, directing, in the first instance, the sale of the mortgaged property. Subsequently the mortgaged premises were sold, as has been found by the Subordinate Judge, for arrears of rent due therefor, and were purchased by the mortgagee. The Subordinate Judge finds that the respondent drew out from the Court the balance of the surplus sale-proceeds, and we have it that he applied it pro tanto to the satisfaction of the mortgage decree. He now seeks to proceed for the balance of his decree against the other properties of the judgment debtor.

2. An objection was taken by the judgment-debtor appellant in this Court, that the decree-holder, mortgagee, was bound, under the terms of his mortgage decree, to put up to sale in the first instance the mortgaged property.

3. The Munsif gave effect to that objection. The Subordinate Judge has overruled it, and allowed the mortgagee decree-holder to take out execution against the other properties of the mortgagor.

4. The judgment-debtor, mortgagor, appeals to this Court and the objection which was urged in the Courts below is urged here that inasmuch as the mortgagee, who was the purchaser of the mortgaged premises at the sale for arrears of rent, did not, under Section 167 of the Bengal Tenancy Act, take proceedings for setting aside his own incumbrance, that incumbrance subsist, and he is bound to proceed first against the mortgaged premises, the contention being that it was a sale under Section 165 of the Act. Section 167, to which reference has been frequently made in this Court provides as follows: '(1) A purchaser having power to annul an incumbrance under any of the foregoing sections and desiring to annul the same, may, within one year from the date of the sale or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing, requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled. (2) Every such application must be accompanied by such fee for the service of the notice as the Board of Revenue may fix in this behalf. (3) When an application for service of a notice is made to the Collector in manner prescribed by this section, he shall cause the notice to be served in compliance therewith, and the incumbrance shall be deemed to be annulled from the date on which it is so served.' If the argument of the learned pleader for the appellant be correct, the incumbrancer must go before the Collector and ask for service of a notice upon himself, and the notice must be served, although he himself is to receive it. In our opinion the proposition is wholly untenable; for, looking at the words of the section itself, it appears to us that the purchaser there contemplated is a purchaser other than the incumbrancer. The Legislature in making this provision had in view, we think, the fact that the person who purchased property under Section 165 was different from the person who claimed to have a charge or incumbrance on that property, and intended that the purchaser, if he wanted to destroy anybody else's interest in the property purchased by him, was bound to proceed in accordance with the provisions of Section 167. We cannot impute to the Legislature the enactment of any provision of law which in its application would lead to an absurdity. In our opinion the law applicable to a purchase made by an incumbrancer is Section 101 of the Transfer of Property Act, which provides that ' where the owner of a charge or other incumbrance of immoveable property is or becomes absolutely entitled to that property, the charge or incumbrance shall be extinguished, unless he declares, by express words or necessary implication, that it shall continue to subsist, or such continuance would be for his benefit.' It will be noticed that this section is of general application. On the other hand Section 167 of the Bengal Tenancy Act applies only to sales under that Act. Its provisions cannot affect the general provisions of Section 101 of the Transfer of Property Act, and if the spirit of the two sections is kept in view the intention of the Legislature will be perfectly clear. In Section 167 the destruction or annulment of a certain right is contemplated. In Section 101 the preservation of a certain right is kept in view. For example, a person may have a charge upon a certain property and he may become the owner in fee, or, to use the language of the section, may become absolutely entitled to that property, the law says that if he desires to keep up his charge or whatever the incumbrance may come to, he must evince an intention either by express words or by necessary implication that he means to keep up the charge or incumbrance, otherwise it will be extinguished; and the object of this is perfectly clear, for in many cases a person, who is the holder of an annuity or who has even got a mortgage, may like to keep it subsisting for the benefit of others or for his own benefit, on the chance of the property being lost to him. In the present case, the Subordinate Judge finds there is nothing to show that at the time of his purchase the decree-holder declared by express words or necessary implication that the mortgage incumbrance would continue to subsist. On the contrary the fact is that he drew out from the Court the balance of the surplus proceeds of the mortgaged property, which would indicate that his intention was to use these proceeds to satisfy pro tanto his lien on the property. We must, therefore, take it upon the findings of fact and on the view of the law which we have expressed that his mortgage lien on this property was, under the circumstances of the case, extinguished.

5. The quesion then arises, is the decree-holder entitled to proceed for the balance of his decree against the other properties of the judgment debtor. No authority or principle of law has been cited before us to support the contention that because the lien has been satisfied pro tanto the decree-holder is not entitled to proceed for the satisfaction of the balance of his decree against the other properties of the judgment-debtor, and in equity it would be impossible to give effect to such a contention. The suit which is brought upon a mortgage is brought not only upon the lien but also upon the personal covenant. It is on the basis of the personal covenant that a decree is made under Section 90 of the Transfer of Property Act, that is, with regard to any portion of the claim that might remain unsatisfied out of the sale-proceeds of the morgtaged premises. The learned pleader for the appellant in support of the construction of Section 167 contended for by him relied upon the case of Goluk Chunder Das v. Bam Sunker Dutt (1899) 4 C.W.N. 268. In that case no one appeared in this Court for the respondent and the question which has been raised here under Section 101 of the Transfer of Property Act, and the other matters to which we have referred were not in issue, and we do not think that we are bound by it.

6. Having regard to all the circumstances we are of opinion that the view taken by the Subordinate Judge is correct, and that this appeal ought to be dismissed with costs.


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