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Nilratna Bose Vs. Kasumunnissa Bibee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal79
AppellantNilratna Bose
RespondentKasumunnissa Bibee
Cases ReferredAshutosh Greender Chunder Ghose v. Mackintosh I.L.R.
Excerpt:
mortgage - patnidar--adverse possession--sheriff's sale--execution--decree for account--lis pendens--priority--redemption--parties. - .....on the 1st april 1867 obtained a conveyance of it. now, the plaintiff being a purchaser under the mortgage-decree, has sued, as i have said, for khas possession. the first objection taken by the defendant is, that the suit is barred by limitation, on the following ground,--namely, that inasmuch as she, the defendant, has been in possession as patnidar since the 6th september 1865, and as this suit was not commenced until the 13th march 1879, and moreover as she, the defendant, contracted to purchase on the 21st february 1867, her possession must be taken to have been adverse for twelve years before suit. we do not think, however, that the defendant is entitled to rely on her possession as patnidar, as adverse possession against the plaintiff 's claim to the superior interest; and.....
Judgment:

Pontifex, J.

1. In this appeal both the parties claim under the representatives of one Ashutosh Dey. The plaintiff claims under a mortgage made by Ashutosh's representatives on the 11th January 1865. The mortgagee instituted a suit upon that mortgage, making a second mortgagee, whose mortgage was dated the 12th January 1865, a defendant in that suit. He also made the representatives of Ashutosh Dey defendants. And on the 13th November 1865, he obtained a decree on the Original Side of this Court, directing that, unless the defendant paid his mortgage-debt within a time therein named, the property should be sold. Under that decree the property was sold on the 30th March 1867, and purchased by the present plaintiff. A conveyance was made to the present plaintiff on the 6th November 1868; and on the 13th March 1879, he instituted this suit against the defendant, claiming khas possession of the property which he purchased.

2. The defendant's title, also under the representatives of Ashutosh, is as follows: On the 6th September 1865 she obtained a patni of the disputed property, for which she paid a considerable premium; and on the 21st February 1867 she contracted, in a certain suit to which I shall presently refer, to purchase the property in dispute; and under that contract, on the 1st April 1867, a conveyance was made to her of the property in dispute. Now, the suit in which the sale was made to the defendant was a suit of this nature. Ashutosh Dey had a brother, Promothonath Dey; and apparently during the lives of the brothers, Ashutosh had been the managing member of the family. Promothonath Dey having died, his representatives instituted a suit against Ashutosh, asking that accounts might be taken of the management of the joint estate, and that a partition might be effected between the parties. By the decree in that suit accounts were directed, and Ashutosh Dey himself was appointed the receiver without security. The decree was dated the 28th February 1855, and was in the usual form, declaring that Promothonath Dey's will was established, and directing that a receiver should be appointed with usual powers, and that accounts should be taken, reserving further consideration. By a subsequent order in that suit, dated the 29th August 1866, it was found, upon the Master's report, that a sum of Rs. 1,32,406 was due from the estate of Ashutosh Dey (who had died subsequently to the first decree); and it was also found that the representatives of Ashutosh Dey, who had been made parties by revivor to that suit, admitted assets of Ashutosh Dey; and there was an order that the representatives of Ashutosh Dey should pay the sum of Rs. 1,32,406 into Court to the credit of that suit. That last order was, as I have said, made on the 29th August 1866; but the representatives of Ashutosh Dey, being unable to pay into Court the sum of Rs. 1,32,406 as directed by that order, an order was subsequently made by the Court that part of Ashutosh Dey's estate should be sold; and it was under this last order that the defendant, on the 21st February 1867, contracted to purchase this property, and on the 1st April 1867 obtained a conveyance of it. Now, the plaintiff being a purchaser under the mortgage-decree, has sued, as I have said, for khas possession. The first objection taken by the defendant is, that the suit is barred by limitation, on the following ground,--namely, that inasmuch as she, the defendant, has been in possession as patnidar since the 6th September 1865, and as this suit was not commenced until the 13th March 1879, and moreover as she, the defendant, contracted to purchase on the 21st February 1867, her possession must be taken to have been adverse for twelve years before suit. We do not think, however, that the defendant is entitled to rely on her possession as patnidar, as adverse possession against the plaintiff 's claim to the superior interest; and although the defendant contracted to purchase the superior interest on the 21st February 1867, which would be more than twelve years before suit, yet, inasmuch as the conveyance was not made to her until the 1st April 1867, we are of opinion that she cannot be considered to have been in possession of the superior interest as purchaser until the date of that conveyance, and as that date was within twelve years of suit, she is not now entitled to contend that the plaintiff's claim is barred by adverse possession. The defendant next contends, that her purchase on the 21st February 1867 is entitled to priority over the plaintiff's purchase in the mortgage-suit for the following reasons,--that the defendant's purchase was made in a suit which was depending long before the date of the mortgage under which the plaintiff claims, and that the sale to the defendant was made in order to pay a debt of Ashutosh Dey himself, and which had been found to be owing from Ashutosh to the plaintiff in that first suit: and that such suit as a lis pendens affected the plaintiff and the mortgagee under whom the plaintiff claims. That, however, depends entirely upon the nature of the suit. The order that I have referred to in that suit dated the 28th February 1855, which was the only order precedent to the mortgage, gave no notice whatever that this particular property of Ashutosh Dey could be in any way affected by the result of that suit. In the, case of Kailas Chandra Ghose v. Fulchand Jaharri 8 B.L.R. 474 a question of lis pendens, very similar to this, had to be considered, and at page 489, Sir Richard Couch, who was then the Chief Justice, makes these observations: 'With regard to the question of lis pendens, the doctrine appears to be this, that the alienee is bound by the proceedings in the suit after the alienation and before he becomes a party. Then the question is, by what proceedings in the suit is he bound? Is he bound by the proceedings which arose from the nature of the suit, and from the case set up, and the relief prayed in the bill, or is he to be bound by any order which the Court may be induced by the parties to make in the course of the suit? I can find no authority which goes to the extent of saying, that because he does not think fit to become a party to the suit, he is to be bound by any order whatever that may be made. It seems to me, that he ought only to be bound by proceedings which, from the nature of the suit and the relief prayed, he might expect would take place; and if there had been no notice in this case, it might have been necessary for us to determine what is the precise effect of lis pendens. But this need not now be determined. Practically there is no substantial difference between lis pendens and having notice of the suit. He would be equally bound by them, and not more by one than by the other. Looking at the decree of the 2nd February 1864, I am of opinion that Fulchand Jaharri cannot be taken to have anticipated that such an order as this would have been made in the suit, and it is not a proceeding by which he is bound.' Applying these observations to the case before us, it seems to us that the mortgagee, who claimed tinder the mortgage of the 11th January 1865, could not at that time have anticipated that the order of the 29th August 1866, or the subsequent order in that suit directing this particular property to be sold, would be made; and therefore neither the mortgagee, nor the plaintiff claiming under him, would be bound by the subsequent order for sale in that suit; and his mortgage, therefore, would be entitled to take precedence of the defendant's purchase in that suit. But then it is argued, that as the sale to the defendant was made for the express purpose of paying the debts of Ashutosh, it ought to have priority over a mortgage made by the representatives of Ashutosh, the money secured by which was avowedly not to be applied in payment of the debts of Ashutosh. But the avowed purpose for which the mortgage was made was to raise money for payment of Government revenue, the payment of which would be in the nature of an insurance of Ashutosh's property for the claim of his creditors, and such a mortgage would, therefore, be entitled to priority, and if the mortgage had not in fact been made to provide for payment of Government revenue, still there is nothing in this record to show that the mortgagee was aware that there were unpaid creditors of Ashutosh, or even if aware of that fact, that Ashutosh's representatives intended to misapply the money advanced to them. And unless he was proved to have notice of both these circumstances, he would be entitled to insist on the validity of his mortgage as against the creditors of Ashutosh Greender Chunder Ghose v. Mackintosh I.L.R. 4 Cal. 897.

3. We are, therefore, of opinion that the plaintiff's title as claiming through the mortgagee prevails over the defendant's title. But inasmuch as the defendant was a patnidar, and so far as appears from this record and according to the finding of the Judge of the Court below, her patni was dated before the time the mortgage-suit was instituted, we are of opinion that she, as patnidar, ought to have been made a defendant in the mortgage-suit, so as to have the opportunity afforded her of redeeming the mortgages. In this country patnis, zuripeshgi leases, and interests of that nature are very considerable interests in the land, and cannot be looked upon as mere leases for a term of years which a mortgagee might have the right to disregard. They are in fact substantial proprietorial interests, on the grant of which, as in this case, considerable premiums are paid; and it is only equitable, that persons in that position should be allowed the opportunity of preserving their interests by redeeming any mortgages made by the superior holder. In this case the patnidar was not made a party to the mortgage-suit; and therefore any decree in that suit would not affect her, and the plaintiff having purchased under that decree, can have no higher right against her than the mortgagee would have had if he had made her a defendant to the suit on the mortgage. What then are the plaintiff's rights against the defendant in this suit? It 1ms been urged, that inasmuch as he instituted this suit for khas possession, the suit ought to have been simply dismissed, and certain authorities have been referred to as showing that that was the proper course to be followed. But in this case the Subordinate Judge has in fact treated, the suit as a redemption-suit, and has given a decree to the plaintiff, subject to the defendant's right whatever that may be, to redeem. We think, therefore, it would be improper, under the circumstances, to dismiss the suit without giving the plaintiff any relief. Moreover, it has been brought to our notice, that although the learned. Judge in the Court below has, in his judgment, found that the mortgage-suit was instituted after the date of the patni, as a matter of fact, the mortgage-suit was instituted before the date of the patni. This is an additional reason why we should not dismiss the suit, merely because it was wrongly conceived in asking for khas possession. But inasmuch as the plaintiff has not appealed from the decree of the Subordinate Judge, we cannot now interfere with his finding, and we must deal with the case as if the mortgage-suit had in fact been instituted after the date of the patni. Then what are the equitable terms upon which the defendant should be permitted to redeem the plaintiff? It has been stated, that the mortgage under which the plaintiff claims comprised additional property as well as that which the defendant purchased on the 1st of April 1867. If the defendant had been a party to the mortgage-suit, she could not have redeemed without paying the aggregate amount of the principal and interest--moneys due upon both the mortgages at the date of the mortgage-decree, but she would have been let in to redeem on paying that amount. Now the price paid by the plaintiff for the land in dispute when he purchased on the 30th of November 1867, may have been either more or less than that aggregate amount. If it was more, we think the defendant is entitled to redeem on paying that aggregate amount (with interest as hereinafter mentioned) and no more; because it was not her fault that she was not made a party to the mortgage-suit, and she has not received the excess. If, on the other hand, it was less, we think the defendant is entitled to redeem on paying the amount paid by the plaintiff as purchase-money on the 30th November 1867 (with interest as hereinafter mentioned). The defendant having the alternative of paying either of the amounts referred to, must also pay interest at the rate of six per cent, per annum for three years preceding the date of the decree of the lower Court upon the capital sum so to be paid until the date of payment. The defendant will be allowed six months within which she must pay these sums, and the decree will be, that unless she pays the smaller of the capital sums before indicated, together with interest thereon as before mentioned, within the said six months, she will be foreclosed, and the plaintiff will be entitled to a decree for khas possession. If, on the other hand, she makes the payments directed within the six months, then the plaintiff, upon such payment, must convey to the defendant all the interests of the plaintiff in the property. We think that the costs of the suit should follow the usual course in a mortgage-decree, viz., if the defendant redeems under the liberty which we have given her, she must do so on the terms of paying all the costs of the suit. If, on the other hand, she does not avail herself of that privilege, then there will be no order for costs, and the plaintiff will be entitled to a decree for khas possession.


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