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Kamal Kumar Nandi and ors. Vs. Kali Meah and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.662
AppellantKamal Kumar Nandi and ors.
RespondentKali Meah and ors.
Excerpt:
estoppel - evidence act (i of 1872), section 115--where facts known, no estoppel. - .....as against the plaintiffs from denying that judhister was entitled to the entire 2 annas 6 pies 5 krants share comprised in his mortgage to nemai charan nandi, the predecessor in-interest of the plaintiffs. there is no question that the 2 annas 6 pies 5 krants share belonged to judhistir and his brother madan, and that judhister was entitled only to a moiety though he purported to mortgage the whole. the mortgage-decree as passed was against judhistir alone. after the preliminary decree and before the decree absolute, nityanund roy was made a party to the suit. this was because he had purchased mehal ajodhya ram, being taraf no. 2 of mouzah madarsha at a revenue sale. this taraf comprised the 2 annas 6 pies 5 krants share of judhister and madan and 1-anna odd of other persons,.....
Judgment:

1. The facts of the case out of which this appeal arises appear sufficiently from the judgment of the Courts below. The only point which has been urged before us is that defendant No. 14 as the successor-in-interest of Rai Bahadur Nitya nund Roy is in some way estopped as against the plaintiffs from denying that Judhister was entitled to the entire 2 annas 6 pies 5 krants share comprised in his mortgage to Nemai Charan Nandi, the predecessor in-interest of the plaintiffs. There is no question that the 2 annas 6 pies 5 krants share belonged to Judhistir and his brother Madan, and that Judhister was entitled only to a moiety though he purported to mortgage the whole. The mortgage-decree as passed was against Judhistir alone. After the preliminary decree and before the decree absolute, Nityanund Roy was made a party to the suit. This was because he had purchased mehal Ajodhya Ram, being Taraf No. 2 of mouzah Madarsha at a revenue sale. This Taraf comprised the 2 annas 6 pies 5 krants share of Judhister and Madan and 1-anna odd of other persons, making in all a four annas share of the larger estate. Nityanund Roy was so brought on the record as a person interested in the mortgaged property, who had taken it subject to encumbrances, that is, to the mortgage by Judhrstir. In their grounds of appeal to this Court, the plaintiffs contended that by reason of Nityanund Roy having been a party to the mortgage suit his heir, defendant No. 14, was precluded from alleging in this suit that the entire 2 annas 6 pies 5 krants were not included in the mortgage. In argument before us this contention was not seriously pressed, but it was urged that, inasmuch as Nityanund Roy was present at the sale, at which the plaintiffs bought, his heir cannot be allowed now to say that the property mortgaged and sold was not the whole 2 annas 6 pies 5 krants. Assuming that any question of estoppel could arise in the case, it was not raised in the Court of first instance, no issue was framed with regard to it, and no evidence was adduced to prove the facts necessary to support such a plea. It was necessary that the lower Courts should find that the plaintiffs were not aware that Judhister had title only to a moiety of the property comprised in the mortgage and that they were misled by some representation by conduct of Nityanund Roy into believing that Judhister had the full title. It is needless to say that where a person is aware of the true facts and has, therefore, not been misled, no question of estoppel can arise. In this case the point was not taken at the proper stage, i.e., in the Court of first instance, so we are left without the requisite facts and findings on which alone such an argument could be based. We must accordingly decline to consider the question.

2. The appeal is dismissed with costs.


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