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Pergash Koer and anr. Vs. Mahabir Pershad NaraIn Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal582
AppellantPergash Koer and anr.
RespondentMahabir Pershad NaraIn Singh and anr.
Cases ReferredGanga Sahai v. Kishen Sahai I.L.R.
Excerpt:
mortgage - conditional sale--foreclosure--suit for possession on foreclosure--regulation xvii of 1806, sections 7 and 8--act iv of 1882 (transfer of property act), sections 2, clause (c) and 86. - .....by defendant no. 2, and the principal ground of defence was that he was the real purchaser of the property mortgaged; that since the date of his taking possession under the purchase, he has been in exclusive possession of it and that his father has nothing to do with it.3. he further alleged that this purchase took place before the application under regulation xvii of 1806 was made to the district court, and therefore the suit could not be decreed inasmuch as no notice had been served upon him.4. there are other questions in the case, but the lower court has found all of them in favour of the plaintiffs. it has been found that the mortgage was executed; that the money covered by it was really advanced to the father; and that the notice was served upon the mortgagor, defendant no. 1. but.....
Judgment:

Mitter, J.

1. This suit was based upon a mortgage deed called bye-bil-wufa, executed by the defendant No. 1 in favour of the plaintiff's father, on the 21st July 1873. Under this deed a two-anna nine-pie share, out of five annas six pie, out of eleven annas of the mouzah in dispute, which eleven annas constituted an entire estate, was mortgaged. The plaintiff alleged that on the 15th June 1877 an application was made to the District Court for service of notice under Regulation XVII of 1806; that this notice was served upon the mortgagor; and that as the money due under the mortgage' was not paid within the time allowed by the Regulation, the right to redeem was barred. It was further stated in the plaint that, some time after the notice had been served, the plaintiffs came to know that the share mortgaged had been sold in execution of a decree against the mortgagee [mortgagor?] and purchased by the mortgagor himself in the name of his son, the defendant No. 2. Accordingly, the defendant No. 2 was made a defendant in the suit. The prayer in the plaint was for a decree for possession upon foreclosure of the mortgage, and also for 'other relief' which according to law it might be deemed proper to grant.

2. The suit was defended only by defendant No. 2, and the principal ground of defence was that he was the real purchaser of the property mortgaged; that since the date of his taking possession under the purchase, he has been in exclusive possession of it and that his father has nothing to do with it.

3. He further alleged that this purchase took place before the application under Regulation XVII of 1806 was made to the District Court, and therefore the suit could not be decreed inasmuch as no notice had been served upon him.

4. There are other questions in the case, but the lower Court has found all of them in favour of the plaintiffs. It has been found that the mortgage was executed; that the money covered by it was really advanced to the father; and that the notice was served upon the mortgagor, defendant No. 1. But the lower Court dismissed the suit upon the ground that the plaintiff failed to prove that the defendant No. 2, the son, was the furzi or benamidar of the father, defendant No. 1.

5. There was a further contention before the lower Court on behalf of the plaintiffs, viz., that supposing, for want of notice upon defendant No. 2, no decree absolutely foreclosing the mortgage could be made in this suit, there was nothing to prevent that Court from making a decree under Section 86 of the 'Transfer of Property Act' of 1882. With reference to this contention the Subordinate Judge says that there was no prayer to this effect in the plaint, nor would the words 'other relief' include it. He accordingly refused to accede to this prayer, which was made at the time of the last hearing. The Subordinate Judge, therefore, dismissed the suit altogether.

6. Against this decision the plaintiffs have appealed. The evidence adduced by the defendant No. 2 to prove that he was separate from his father is, as remarked by the lower Court, hardly satisfactory; and it being a presumption of Hindu law that the members of a family, and especially such members as these, namely, father and son, are joint, I should be inclined to presume that the purchase was made by the joint family. But as my learned brother is not prepared to go to this length, I would not press this view of the case to deprive the mortgagor of his right of redemption. It is, however, quite clear to us that the lower Court was in error in dismissing the suit altogether. We are of opinion that the lower Court was not right in refusing to make a decree in this case under Section 86 of the 'Transfer of Property Act.'

7. Our attention has been drawn to a decision in Ganga Sahai v. Kishen Sahai I.L.R. 6 All. 262. In that case the question was whether the procedure part of the 'Transfer of Property Act' would apply to mortgages executed before the Act came into operation. This question was referred to a Full Bench, and the majority of the Judges were of opinion that this question should be answered in the affirmative. The Chief Justice, however, dissented from the view taken by the majority of the Judges.

8. Section 2 of the ' Transfer of Property Act ' says: 'In the territories to which this Act extends for the time being, the enactments specified in the schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect (a) the provisions of any enactment not hereby expressly repealed; (b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force; (c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or {d) save as provided by Section fifty-seven and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction: and nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu, Mahomedan or Buddhist law.' We are concerned only with Clause (b)[c?] of this section. I think that the words 'or any relief in respect of any such right or liability' have preserved to a mortgagor of the description under consideration the right which he had under the Regulation of 1806, viz., to pay off the mortgage money, and thus prevent the mortgage being foreclosed within one year from the date of notice. That being so, it seems to me that the procedure laid down in the 'Transfer of Property Act' will apply, but it will not affect this right. Section 2 does not say that nothing herein contained shall apply to any transaction entered into before the Act was passed, but it says, 'nothing herein contained shall be deemed to affect any right or liability.' Therefore, the procedure laid down in the Act may be applied subject to this restriction that it should not be so applied as to affect the rights saved by Section 2. With this qualification, if I may be permitted to say so, I agree with the majority of the Judges of the Full Bench. Therefore, applying the provisions of the 'Transfer of Property Act,' in the way mentioned above, I think that the plaintiffs in this case are entitled to a decree in the terms of Section 86 of that Act. In this view of Section 2 of the 'Transfer of Property Act,' my learned colleague agrees. We, therefore, direct that a decree be drawn up in the manner provided by Section 86, substituting 'one year' for 'six months' mentioned therein. But as in this case the plaint was not properly drawn up, and as no application was made in the lower Court (in proper time) to amend the plaint so as to include in it an express prayer for a decree under Section 86 of the 'Transfer of Property Act,' we think that each party should bear his own costs in this as well as in the lower Court.


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