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Raj Kumar Roy Vs. Mritunjoy Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 110 of 1947
Judge
Reported inAIR1951Cal202
ActsTransfer of Property Act, 1882 - Section 91
AppellantRaj Kumar Roy
RespondentMritunjoy Das
Appellant AdvocateApurba Charan Mukherji and ;Ganganarayan Chandra, Advs.
Respondent AdvocateShambhu Nath Banerji, Adv.
DispositionAppeal dismissed
Cases ReferredApa v. Solan
Excerpt:
- .....prem chandra giri obtained a decree on the mortgage and in execution of that decree brought to sale property no. 2 on 9-4-1935. the sale was confirmed on 29-6-1935. the sale certificate is ex. l (1).3. as regards property no. 1 one gajendra narayan maity obtained a money decree against the plaintiff and his co-sharers on 18-8-1932 and in execution of that decree (money ex. case no 68 of 1932) this property was sold and purchased by defendant 1 on 15-3-1933. the sale was confirmed on 18-4-1933. the sale certificate is ex. e.4. the plaintiff's case is that he was born in falgoon 1329 b. s. that is, february or march 1918. as regards property no. 1 be suggests that he was a minor at the date of the passing of the decree and at the time of the sale. he further alleges that the processes.....
Judgment:

G.N. Das, J.

1. This appeal is at the instance of the plaintiff in a suit for redemption. The facts are that on 30-8-1918 the plaintiff's father Annada Charan Roy Mahapatra borrowed money on a mortgage from the defendants father Gaya Prosad Das. The sum borrowed was Rs. 2,500 and carried interest at the rate of 2 per cent per month. Out of this sum, a sum of Rs. 1,600 was paid in satisfaction of the previous loan of the mortgagee and of one Trailokhya Mashani. The balance of Rs. 900 was retained by the mortgagee for payment of a contingent liability in favour of one Kripa Sindhu Paramanik. The property mortgaged consisted of two items of property, (1) three annas share of separate accounts Nos. 1 and 2 in mouzas Nij Menakapore and Uttar Arbala appertaining to touzi No. 2661 of the Midnapore Collectorate and (2) three annas share of a Khudra Niskar known as Rani Patni. These properties are set out Schedule Kha of the plaint. The terms of the mortgage bond which was for a period from 13th Bhadra 1325 B. S. corresponding to 30-8-1918 to the end of the Amli year 1350 were that the mortgagee would get into possession of the mortgaged property and out of the usufruct pay himself a sum of Rs. 250 towards principal and interest and pay revenue and cesses to the tune of Rs. 190 and a sum of Rs. 30 to the mortgagor.

2. It is not disputed that the mortgage so created was a usufructuary mortgage. The mortgagor, Annada Charan Mahapatra died in the year 1336 B. S. The mortgagee died in 1340 B. S. It also appears that on property No. 2 there was a previous mortgage in favour of one Hara Prosad Giri. On Hara Prosad's death, his son and successor Prem Chandra Giri obtained a decree on the mortgage and in execution of that decree brought to sale property No. 2 on 9-4-1935. The sale was confirmed on 29-6-1935. The sale certificate is Ex. L (1).

3. As regards property No. 1 one Gajendra Narayan Maity obtained a money decree against the plaintiff and his co-sharers on 18-8-1932 and in execution of that decree (Money Ex. case No 68 of 1932) this property was sold and purchased by defendant 1 on 15-3-1933. The sale was confirmed on 18-4-1933. The sale certificate is Ex. E.

4. The plaintiff's case is that he was born in Falgoon 1329 B. S. that is, February or March 1918. As regards property No. 1 be suggests that he was a minor at the date of the passing of the decree and at the time of the sale. He further alleges that the processes in the aforesaid suit and execution case were suppressed and he had no knowledge about the pendency of the proceedings leading up to a sale of his interest in this property. He also alleges that the real auction-purchaser was not the defendant bat the latter's father Gaya Prosad Das the mortgagee. He further suggests that by this purchase the defendant became a trustee for him. The plaintiff also alleges that if accounts are taken it would appear that the mortgagee has recovered a sum of Rs. 6,500 out of the profits and deducting therefrom a sum of Rs. 3,200 being double the principal sum advanced on the mortgage there will be a balance of Rs. 3,300 in his favour. The plaintiff therefore prays for a declaration that the aforesaid mortgage has been fully satisfied, and in the alternative he prays that if the entire dues under the mortgage were not fully satisfied for a decree for redemption on payment of the sum due. He also prays for recovery of possession of the mortgage premises. He also prays for a decree for Rs. 3300 which was overpaid to the mortgagee according to the allegations in the plaint. He also prays for a declaration that the auction-sale held on 15-3-1932 in Money Execution Case No. 63 of 1932 was void, and in the alternative he prays for redemption of this property. He prays for incidental reliefs.

5. To this suit the defence raised by the defendant was that as property No. 2 was sold in execution of a prior mortgage decree the plain, tiff's right to redeem the said property is barred. As regards property No. 1 the defence is that there was no suppression of the processes as alleged in the plaint, that the plaintiff was not a minor and that the real purchaser at the sale was not Gaya Prasad Das but the defendant himself. As such the plaintiff can have no right of redemption as regards plot No. 1 also.

6. The learned Subordinate Judge was of the opinion that as regards property No. 2 there was no dispute at the time of the trial that the plaintiff had no right of redemption. As regards property No. 1 the learned Subordinate Judge was of the opinion that no redemption can be had because the plaintiff was not a minor. As such the sale was binding on him. The learned Subordinate Judge also seemed inclined to the view that the sale processes were duly served. The learned Subordinate Judge did not come to any finding as to whether the defendant was a benamidar of his father Gaya Prasad Das. But the learned Subordinate Judge was of the opinion that even assuming that the defendant was a benamidar for the mortgagee the purchase at the execution sale on 15-3-1932 being in execution of a decree obtained by a stranger no trust was raised and no question of accounting therefore arose. The Bait was accordingly dismissed. Against this decree the plaintiff has preferred this appeal.

6. Mr. Mukherji, appearing for the appellant, has not disputed the view taken by the Court below that the plaintiff has no right of redemption as regards property No. 2. He has confined his arguments to property No. 1.

7. In the first place he contends that the plaintiff was a minor at the relevant date and as such the decree and the sale at the instance of Gajendra Narayan Maity did not bind him and did not affect his title so far as property No. 1 is concerned. This argument rests on a question of fact, viz., whether the plaintiff was a minor at the relevant dates. The plaintiff's case in the plaint is that he was born in Falgun 1334 B. S. The case of the defendant, on the other hand, is that the plaintiff was born in the year 1911, that is, 1318 B. S. [After considering evidence his Lordship concluded] : In this state of the record we see no reason to dissent from the view taken by the learned Subordinate Judge that the plaintiff was not a minor at the relevant dates. The first contention raised on behalf of the appellant must therefore be overruled and we must proceed on the basis that the plaintiff was a major at the relevant dates.

8. Mr. Mukherji did not dispute the view taken by the learned Subordinate Judge that no case of trust arises in view of the fact that the decree in execution of which the equity of redemption of the plaintiff was sold, was obtain, ed by a stranger. Mr. Mukherji strongly pressed the contention, which does not seem to have been argued in the Court below, that the plaintiff is the mortgagor and as such he is entitled to redeem under the express terms of Section 91, T. P. Act. He points out that the right to redeem, in the facts of the present case, is not barred by time. It is therefore necessary for us to consider the effect of Section 91, T. P. Act. The material portion of Section 91, T. P. Act reads as follows :

'Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely, Clauses (a), (b) and (c) which are not relevant for the present purposes.'

There is no dispute that the mortgage with which we are concerned is a usufructuary mortgage, nor is there any dispute that there is no subsisting personal liability of the mortgagor at the date of the suit.

9. It is true that the word 'mortgagor' has been used without any qualifying epithet and prima facie supports the contention raised by Mr. Mukherji that as the plaintiff was the mortgagor or the successor of the mortgagor he is entitled to redeem. We have therefore to consider the question whether the word 'mortgagor' is used in a wide sense and includes one who has no estate in the property mortgaged.

10. In order to get at the true meaning of the word mortgagor we have to consider the basic concept of a mortgage transaction, viz., that the right to redeem and the right to foreclose are co-extensive and reciprocal rights.

11. In a case where the mortgagor has entirely parted with the equity of redemption in order that the mortgagee may cut off the equity of redemption by a suit either for, foreclosure or for sale must implead all persons interested in the equity of redemption. Order 34, Rule 1, Civil P. C., requires the mortgagee to implead all persons interested in the equity of redemption. In the case of Digambar v. Suajan : AIR1929Cal233 it was held by this Court that if a mortgagee impleads the mortgagor who has entirely parted with his interest in the mortgaged premises and recovers a decree for foreclosure or for sale the effect of that decree is not to vest in the mortgagee the equity of redemption. The decree for foreclosure or for sale in such cases is ineffective to pass to the mortgagee or the purchaser at the mortgage sale the right to redeem. In the early case of Perry v. Barker, (1803) 8 Ves. 527 : 32 E. R. 459 it was held that the possession of an estate in the mortgagee was necessary in order that the mortgagee may sue on the personal covenant against the mortgagor or holder of the equity of redemption. Where the mortgagee after a decree for sale or foreclosure parts with the mortgaged property and thereafter sues on the personal covenant the mortgagee is only entitled to recover the difference between the price fetched at the mortgage sale and the sum due on the mortgage.

12. Similar principle must be applied to the case of a mortgagor. The mortgagor must therefore be possessed of subsisting interest in the mortgaged premises or any part thereof. This rule is however subject to an exception where the mortgagor is sued upon the personal covenant, to pay the mortgage money by the mortgagee. In such a casa a new right to redeem the mortgaged property springs up into existence and entitles the mortgagor to get a reconveyance of the mortgaged property to himself subject of course to the rights of persons interested in the equity of redemption, Kinnaird v. Trollope, [1888) 39 Ch. D. 636 : (57 L. J. Ch. 905). But as Sir Rashbehary Ghose points out in his Tagore Law Lectures, Edn. 5 p. 253 a mortgagor who has thus entirely parted with his interest in the mortgaged property cannot actively enforce his right to redeem when sued upon the personal covenant.

13. Mr. Mukherji appearing for the appellant drew our attention to the case of Ram Das v. Parmanandgir : AIR1931All238 . That case however deals with the right of a person who has acquired by purchase the equity of redemption, to enforce his right to redeem. The case of Ram Kishore v. Jagannath A. I. R. (21) 1934 Pat. 307 : (161 I. C. 255), to which our attention was also drawn by Mr. Mukherji does not throw any light upon the point which is now under consideration before us.

14. In my opinion, the word 'mortgagor' in Section 91, T. P. Act, must mean a mortgagor who has subsisting interest in the mortgaged premises.

15. Section 60, Proviso, T. P. Act, does not present any difficulty. In a case like the present the right to redeem may be taken do have been extinguished by the act of the mortgagor in allowing the equity of redemption to be sold in execution of the money decree. Section 62, T. P. Act, merely defines the right of a mortgagor in case of a usufructuary mortgage. The view taken by me receives support from the decision in the case of Apa v. Solan 1889 Un. P. J. Bom. 291 where Sargent and Candy JJ., assumed that the right of redemption remains in the mortgagor so long as he has any estate in the mortgaged property.

16. The result of the above discussion leads to the conclusion that the word 'mortgagor' in Section 91, T. P. Act, must mean a mortgagor who has a subsisting interest in the mortgaged premises. In the present case, the plaintiff had no subsisting right at the date of the suit. The third contention raised on behalf of the appellant also fails.

17. The result therefore is that this appeal fails and it is dismissed with costs, hearing fee being assessed at ten gold mohurs.


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