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Niharmala Debee Vs. Sarojebandhu Bhattacharjya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal728
AppellantNiharmala Debee
RespondentSarojebandhu Bhattacharjya
Cases ReferredBhodai Shaik v. Lakshminarayan Dutt
Excerpt:
- .....of 1891. in this suit however ahmaddi was not impleaded as a party.2. the plaintiff's obtained a mortgage decree on 26th june 1902, and, in execution of that decree, they purchased the properties on 15th june 1904 and obtained symbolical possession. in 1902 the landlord had obtained a rent decree against ahmaddi and in execution of that decree the property was put up to sale and defendant 11 purchased the right, title and interest of ahmaddi on 11th may 1903. thereafter, on 15th february 1916, the plaintiffs instituted a suit for possession of the property in question on the allegation that defendant 11 who had been in possession was resisting them from obtaining possession thereof. the defence 'inter alia was that the plaintiffs were not the heirs of surjyakanta, that the mortgage was.....
Judgment:

Mallik, J.

1. This appeal arises out of a suit for declaration of title to some lands and for recovery of possession of the same The property originally belonged to one Kamaladdi Mandal and his brothers. About 1888 one of the brothers and the heirs of the other brothers mortgaged the property to one Surjyakanta Bhattacharjya, the maternal grandfather of the plaintiffs. Surjyakanta, in October 1888, executed a will, by which he devised his properties to his daughter Gopendrabala Debee and died. Gopendrabala, in 1889, took probate of the will. In June 1891 the mortgagors executed an instalment mortgage bond in favour of Gopendrabala. In the year 1895 a rent suit was brought against the mortgagors for the rent of the lands, a decree was obtained and, when the property was put up to sale in execution of the decree, one Ahmaddi purchased one-half share of the holding, thereby acquiring the right, title, and interest of the mortgagors of the property and becoming the holder of the equity of redemption in respect of one-half share of the property. In the year 1901 the plaintiffs who, as I have said before, are the sons of Gopendrabala, the daughter of Surjyakanta, instituted a suit upon the mortgage bond of 1891. In this suit however Ahmaddi was not impleaded as a party.

2. The plaintiff's obtained a mortgage decree on 26th June 1902, and, in execution of that decree, they purchased the properties on 15th June 1904 and obtained symbolical possession. In 1902 the landlord had obtained a rent decree against Ahmaddi and in execution of that decree the property was put up to sale and defendant 11 purchased the right, title and interest of Ahmaddi on 11th May 1903. Thereafter, on 15th February 1916, the plaintiffs instituted a suit for possession of the property in question on the allegation that defendant 11 who had been in possession was resisting them from obtaining possession thereof. The defence 'inter alia was that the plaintiffs were not the heirs of Surjyakanta, that the mortgage was not a valid mortgage and that the plaintiffs could have no relief against the contesting defendant, namely, defendant 11, who was the purchaser of the equity of redemption, the person whose interest the defendant had purchased not having been impleaded in the mortgage suit. This defence was negatived by both the Courts below and the Courts below have given a decree to the plaintiffs, subject to the contesting defendant's right of redemption. Defendants 11/1 and 11/2, who are the heirs of the contesting defendant 11, have appealed to this Court.

3. The facts relevant for the purpose of the present appeal that would emerge from what I have stated above are these: (1) the plaintiffs purchased the mortgaged property on 15th June 1904 in execution of their mortgage decree dated 26th June 1902; (2) defendant 11 had purchased a portion of the interest of the mortgagors and thereby had become the owner of a part of the equity of redemption on 11th May 1903; and (3) the plaintiffs in their mortgage suit had made the original mortgagors parties, but left out Ahmaddi who had acquired the right of redemption in respect of a part of the properties and whose right was subsequently purchased by defendant 11. The question is whether under these circumstances the plaintiffs' suit for possession against defendant 11 was maintainable or not. On behalf of the appellants who, as I have stated above, are the sons of the contesting defendant 11, the contention was that the suit could not be maintained, whereas on the side of the respondents it was urged that it was maintainable.

4. Both parties have, cited a number of decisions in respect of their respective contentions. The principal decisions relied on by the appellants are: Grish Chunder Mondul v. Iswar Chunder Rai (1898) 4 CWN 452, Habibullah v. Jugdeo Singh (1901) 6 CLJ 609, Aghore Nath Bannerjee v. Deb Narain Guin (1906) 11C WN 314, Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal 274; Hargu Lal Singh v. Gobind Rai (1897) l9 All 541, Madan Lal v. Bhagwan Das (1899) 21 All 235 (FB) and lastly Bijai Saran v. Baueshwari Prasad Bahadur Sahi AIR 1929 PC 288, which is a decision of the Judicial Committee of the Privy Council, while those on which the respondents placed reliance are Protap Chandra v. Ishan Chandra (1898) 4 CWN 266, Jugdeo Singh v. Habibullah Khan (1907) 16 CLJ 612, Gangadas Bhattar v. Jogendra Nath Mitter (1907) 11 CWN 403, Kalu Sharip v. Abhoy Charan AIR 1921 Cal 157, Bhagaban Chandra v. Tarak Chandra : AIR1927Cal259 , Bhodai Shaik v. Lakshminarayan Dutt : AIR1928Cal116 and some decisions of the Bombay High Court.

5. Mr. Rupendrakumar Mitra's contention was that there was a divergence of opinion not only among the different High Courts in India, but also in the decisions of this Court, as to whether the purchaser at a mortgage sale can recover possession from the purchaser of the equity of redemption who was left out in the mortgage suit, but that divergence has now been set at rest by the Privy Council decision in Bijai Saran Sahi's case (7). In that case the plaintiff who had purchased the right of redemption in execution of his money decree, brought a suit for possession against the defendants to whom the properties had been mortgaged and who had also purchased the same subsequent to their mortgage, but subsequent also to the plaintiff's money decree against the defendants and attachment of the property in execution of that money decree. It was held that the sale to the defendants being invalid the defendants could not set up their mortgage as shields against the plaintiff's claim for possession. It was urged on behalf of the appellants before us that this decision by necessary implication overruled the decision in the cafes of Kalu Sharip AIR 1921 Cal 157, Bhagaban Chandra Kundu : AIR1927Cal259 and Bhodai Shark : AIR1928Cal116 . I am unable to agree with the learned advocate in this view of the matter. The case of Bijai Saran Sahi AIR 1929 PC 288, in my opinion, is clearly distinguishable from the present case, as also the cases which are said to have been over ruled by implication. In the case of Bijai Saran Sahi AIR 1929 PC 288, there was nothing but the defendant's mortgage to be set up against the plaintiff's claim for possession-a mortgage which by itself gave to the defendants no right to possession-and therefore there was nothing valid in the eye of law to stand between the possession of the properties and the plaintiff who, as the purchaser of the equity of redemption, had stepped into the shoes of the owner thereof and was therefore as owner entitled to the possession of the same. In the present case, as also in the case of Kalu Sharip AIR 1921 Cal 157, Bhagaban Chandra Kundu : AIR1927Cal259 and Bhodai Shaik : AIR1928Cal116 , which are said to have been by necessary implication overruled, the mortgagee had not merely his mortgage to set up as a shield against the claim for possession of the holder of the right of redemption but a decree of the Court and purchase by himself of the property in execution of the decree-a decree which was not altogether void. The Privy Council case cannot therefore be said to be of any great assistance in the present matter.

6. On the question whether the purchaser at a mortgage sale can successfully claim for possession against the purchaser of the right of redemption, who had not been made a party in the mortgage suit, and if he can on what conditions, there is divergence in the views of the Bombay, Allahabad and Madras High Courts and the earlier decisions of this Court also were anything but uniform. But the weight of authority, at least in recent decisions of this Court, seems to be decidedly in favour of the respondents. Apart from the decision in Krishtopada Roy AIR 1923 Cal 274, the three decisions of this Court, viz: Grish Chunder Mondul (1898) 4 CWN 452, Habibullah (1901) 6 CLJ 609 and Aghore Nath Banerjee (1906) 11C WN 314, are in favour of the appellants. But the correctness of the decisions in Grish Chunder Mondul (1898) 4 CWN 452 and Habibullah (1901) 6 CLJ 609 was doubted in the case of Kalu Sharip. AIR 1921 Cal 157, and in the case of Aghore Nath Banerjee (1906) 11C WN 314, the mortgagee at the time when the mortgage suit was instituted was aware of the purchase of the equity of redemption. As regards the case of Krishtopada Roy AIR 1923 Cal 274, it is no doubt true that Walmsley, J., made one or two observations to indicate that the view taken by the Allahabad High Court in Hargu Lal Singh (1897) l9 All 541 and Madan Lal (1899) 21 All 235 {F B)-a view in support of the appellants' contention-was the correct view to take. But Suhrawardy, J., followed the decision in Aghore Nath Banerjee (1906) 11C WN 314 on the ground that as in the said case of Aghore Nath Banerjee (1906) 11C WN 314, there was in the case before him the fact that the mortgagee was aware of the purchase of the equity of redemption. The more recent decisions of this Court, among which I may mention the cases of Kalu Sharip (1898) 4 CWN 452, Bhagaban Chandra Kundu : AIR1927Cal259 and Bhodai Shaik : AIR1928Cal116 , are clear authorities in support of the respondents' contention that a mortgagee can bring a suit for possession against the holder of the equity of redemption who had been left out in the mortgage suit and a decree can be made in his favour as has been done in the present case subject to the defendant's right of redemption, a right which the decree in the present case has allowed him to exercise.

7. Apart from the decisions in Grish Chunder Mondul (1898) 4 CWN 452 and Habibullah (1901) 6 CLJ 609, the correctness of which was doubted in Kalu Sharip AIR 1921 Cal 157, the appellants have cited as observed before, two other cases, Aghore Nath Banerjee (1906) 11C WN 314 and Krishtopada Roy AIR 1923 Cal 274, which in its turn was based on Aghore Nath's case (1906) 11C WN 314, in their favour. In both of these cases the mortgagees were found to have knowledge of the purchase of the right of redemption and in spite of that knowledge they had left out the purchasers in their mortgage suits. But there is nothing in the present case to show that the plaintiffs were aware of the purchase by Ahmaddi of a part of the equity of redemption. From this point of view the cases of Aghore Nath Banerjee (1906) 11C WN 314 and Krishtopada Roy AIR 1923 Cal 274, which practically are the only decisions of this Court in favour of the appellants, can be distinguished from the fact of the present case.

8. There is another point of view from which the case may be considered. If the defendant purchaser had not been left out in the mortgage suit he could retain possession only on redeeming and not on anything else. This right of his has in no way been denied to him by the decree made in the present case. By the decree that has been made the defendant has not been prejudiced in any way. On the other hand, the decree has avoided multiplicity of suits and has done complete justice as between the parties. From no point of view the decree of the lower appellate Court can, in my judgment, be successfully assailed. The appeal in my opinion must therefore fail and is accordingly dismissed with costs.

Jack, J.

9. I agree.


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