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Baldeo NaraIn Jha Vs. Bhaya Lal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal712,30Ind.Cas.47
AppellantBaldeo NaraIn Jha
RespondentBhaya Lal Singh and ors.
Cases ReferredMahomed Mozaffer Hossein v. Kishori Mohun Roy
Excerpt:
estoppel - property jointly mortgaged by two persons as its owners--one of them cannot subsequently deny that the other had no title. - .....was created by the representatives of four branches of a milakshara family. the appellant was entitled to one-sixth share of the properties given by way of security; another of the mortgagors was ostensibly entitled to a half share and two others were entitled to one-sixth share each. the appellant now contends that the mortgagor whose name stood registered in respect of one-half share and who joined in the mortgage as owner of that share, was not really interested in the property at all, he was merely a benamidar for the appellant and that, consequently, the purchaser in execution of the mortgage-decree has not acquired a valid title to that share. the subordinate judge has overruled tins contention on the ground that the evidence establishes that the property was realty owned by.....
Judgment:

1. This appeal is directed against the decree in a suit for declaration of title to immoveable property and for recovery of possession thereof. The plaintiff-respondent claims title by purchase at a sale held in execution of a mortgage-decree. The mortgage was created by the representatives of four branches of a Milakshara family. The appellant was entitled to one-sixth share of the properties given by way of security; another of the mortgagors was ostensibly entitled to a half share and two others were entitled to one-sixth share each. The appellant now contends that the mortgagor whose name stood registered in respect of one-half share and who joined in the mortgage as owner of that share, was not really interested in the property at all, he was merely a benamidar for the appellant and that, consequently, the purchaser in execution of the mortgage-decree has not acquired a valid title to that share. The Subordinate Judge has overruled tins contention on the ground that the evidence establishes that the property was realty owned by all the persons in whose name it stood. The reasons given by the Subordinate Judge for his conclusion are prima facts sound, and no serious attempt has been made in this Court to controvert that finding. Apart from this, it is plain that the appellant is not entitled to challenge the title of the, mortgagee. According to him the property was acquired by his father in the name of Babu Ojha. Assume that the allegation is proved. As Babu Ojha was the ostensible owner of the property, the title of the mortgagee from Babu Ojha is not liable to be impeached either by the father of the defendant or by the defendant himself as his successor in interest. If A and B jointly mortgage to X a property which stands in their names, on the allegation that they are proprietors in respect of the shares for which they are registered, it is futile for A or his successor to contend subsequently as against X or his representative that B had no title to the property, and that A was the sole owner: Ramcoomar Koondoo v. McQueen 11 B.L.R. 46 at p. 52 : 18 W.R. 166 : I.A. Sup. Vo. 40 Luchmun Chunder Geer Gossain v. Kalli Churn Singh 19 W.R. 292; Mahomed Mozaffer Hossein v. Kishori Mohun Roy 22 C. 909 : 22 I.A. 129. Consequently, the question raised by the appellant cannot possibly be decided in his favour.

2. The result is that the decree of the Court below is affirmed in so far as this point is concerned and this appeal dismissed with costs.


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