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Brojo Kishoree Bashnavi Vs. Meajan Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.791
AppellantBrojo Kishoree Bashnavi
RespondentMeajan Biswas and ors.
Excerpt:
mortgage - sale of mortgaged property by mortgagor after decree nisi but before decree absolute--right of purchaser--subsequent purchase in execution of the decree--priority--transfer of property act (iv of 1882), sections 52, 88 and 89--lis pendens--mortgage suit. - .....is the appellant in this case. she sued on the basis of a title by purchase in execution, of a mortgage decree obtained against three brothers, safatulla, ebratulla and faratulla, for recovery of possession of the whole of the two holdings which belonged to those three brothers and another brother safatulla and their two sisters shymla bibee and pala bibee. her allegation is that, after she had purchased in execution of her mortgage decree in january 1895, she was dispossessed by the defendants who alleged that they had purchased the interests of faratulla and safatulla and the two sisters, shymla bibee and pala bibee, under a deed of sale, dated the 17th november 1894. the dispossession is alleged to have commenced in 1899 and to have been completed in 1902. of the two holdings in.....
Judgment:

1. The plaintiff is the appellant in this case. She sued on the basis of a title by purchase in execution, of a mortgage decree obtained against three brothers, Safatulla, Ebratulla and Faratulla, for recovery of possession of the whole of the two holdings which belonged to those three brothers and another brother Safatulla and their two sisters Shymla Bibee and Pala Bibee. Her allegation is that, after she had purchased in execution of her mortgage decree in January 1895, she was dispossessed by the defendants who alleged that they had purchased the interests of Faratulla and Safatulla and the two sisters, Shymla Bibee and Pala Bibee, under a deed of sale, dated the 17th November 1894. The dispossession is alleged to have commenced in 1899 and to have been completed in 1902. Of the two holdings in respect of which this suit was brought, it appears that one was the ancestral holding belonging to the four brothers and the two sisters, and the other was a holding acquired in 1293 by Safatulla after his brother Safatulla and his two sisters had separated from him and his two other brothers, and had gone elsewhere. Safatulla and his brother Ebratulla and Faratulla remained living together--perhaps not correctly described as living as a joint family-but living together jointly and having their affairs managed by their elder brother Safatulla. Both the lower Courts have found that the mortgage of the two jotes was executed in favour of the plaintiff's mother by, Safatulla and Ebratulla for debts incurred on their behalf and on behalf of their younger brother, Faratulla. A suit was brought on the basis of that mortgage and a decree was obtained against Safatulla, Ebratullah and Faratulla. The decree was obtained ex parte on the 8th June, 1894. On the 12th January 1895, the interests of the mortgagors in the jotes in question were sold, and were purchased by the plaintiff. Meanwhile on the 17th November 1894, the defendants took a conveyance of the shares of Faratulla and Safatulla and the two sisters, and, on the basis of their purchase, alleging that it was before the date of the sale in execution of the mortgage decree in favour of the plaintiff, they dispossessed the plaintiff. Both the lower Courts held that the shares of Safatulla and the two sisters, Shymla Bibee and Pala Bibee, were not covered by the mortgage decree, and, therefore, the plaintiff, under her purchase on the 12th January 1895, acquired no right to those shares. The lower Courts appear to have held that Faratulla was a party to the mortgage suit, that a decree was obtained in the mortgage suit against his share in the property, and that he was bound by that decree. But they have held that, as the decree in that suit was obtained ex parte, the suit could not be described as a contentious suit and that the doctrine of lis pendens would not apply and, therefore, the sale of the share of Faratulla to the defendants on the 17th November 1894, was not affected by the mortgage decree. In consequence they have given the plaintiff a decree for a two-thirds share of the acquired jote and a two-fifth share of the ancestral jote. The plaintiff has appealed to this Court and the only question that has been argued before us is whether the lower Courts erred in the view which they have taken that the share of Faratulla was not bound by the mortgage decree and that, therefore, the sale to the defendants, on the 17th November 1894, gave them a valid title as against the plaintiff. In our opinion, the view taken by the lower Courts cannot be maintained. Apart from the question whether Faratulla and his vendors are bound by the doctrine of his pendens or not, we hold that there can be no doubt that, after the mortgage decree was obtained against Faratulla on the 8th June 1894, which decree was not appealed against, all that he could have conveyed to the defendants was his equity of redemption in his share of the property which was coveredby the mortgage decree. All, therefore, that the defendants purchased, on the 17th November 1824, was that equity of redemption and that would not have entitled them to prevent the sale of the share of Faratulla in execution of the mortgage decree without redeeming the mortgage. 'We are of opinion that it was not necessary for the decree-holder in that suit to make the purchasers parties in the execution proceedings, even if she was aware of the sale to them which seems doubtful. But if they wished to come in those proceedings, it was incumbent on them to apply to be made parties to those proceedings, and then, in those proceedings it would have been open to them to claim under their purchase the right, Which their vendor had, to redeem the mortgage. They could not acquire under their purchase of the 17th November 1894, such a right in the property, which was afterwards sold to the plaintiff, as would entitle them to possession of that property as against the plaintiff. They took no steps in those execution proceedings to come in or to be made parties, though we think that the date of their purchase leaves no doubt that they were fully aware of the mortgage decree, and, therefore, we hold that, by their purchase on 17th November 1894, they acquired no right under which they could oust the plaintiff from possession of the land which she had acquired under her purchase in execution of the mortgage decree. We, therefore, hold that the plaintiff, on the basis of her purchase, was entitled to a decree declaring her title to the whole of the acquired jot and to a 3/5th share of the ancestral jote. We do not propose to deal at length with the question raised whether the doctrine of lis pendens would, in a case of this sort, apply or not, but we are inclined to the opinion that it would apply in a case like the present where the decree had been obtained in a mortgage suit and where the Us must be held to have continued up to the date of the sale. Even though the suit itself might have proceeded ex parte, we think it would be difficult to hold that such a suit, as a mortgage suit, is not in its nature a contentious suit. We, therefore, allow the appeal and modify the judgment and decree of the lower appellate Court by directing that the plaintiff do obtain a decree declaring her title to possession to the whole of the acquired jote and also a decree for recovery of possession of a 3/5th share of the ancestral jote. Each party will bear his own costs in this Court and in the lower Court, the costs will be borne by the parties in proportion to their respective failure and success.

2. The cross-objection not being pressed is disallowed without costs.


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