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Baikantha Nath Dey and ors. Vs. Mohesh Chandra Dey - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.77
AppellantBaikantha Nath Dey and ors.
RespondentMohesh Chandra Dey
Cases ReferredNawab Azimut Ali Khan v. Jowahir Sing
Excerpt:
mortgage - redemption--purchaser of share of equity of redemption, whether can redeem entire mortgage. - .....the learned district judge he remanded the case to the first court. the first point on which the learned judge remanded the case was that the plaintiffs, as he held, were entitled to redeem only in respect of an undivided 2/3rds share in the property subject to the mortgage. the learned judge, acting on the decision in the case of girish chunder dey v. juramoni de 5 c.w.n. 83 came to the conclusion that the plaintiffs were entitled to redeem only a portion of the property. the decision on which the learned district judges acted was, in my opinion, a wrong decision. the case on which the learned judges who decided the case reported as girish chunder dey v. juramoni de 5 c.w.n. 83 rested their decision, namely, the case of nawab azimut ali khan v. jowahir sing 13 m.i.a. 404 : 14 w.r.p.c......
Judgment:

Fletcher, J.

1. This is an appeal against an order of the learned District Judge of Bankura, dated the 19th March 1915, modifying the order of the Munsif of the 3rd Court at Bishenpur. The suit was brought by the plaintiffs as the purchasers of the equity of redemption in a certain property. The defendant was the mortgagee under an usufructuary mortgage. It is found by both the lower Courts, and not denied, that the time for redemption has arrived. The learned Munsif decreed redemption. On appeal to the learned District Judge he remanded the case to the first Court. The first point on which the learned Judge remanded the case was that the plaintiffs, as he held, were entitled to redeem only in respect of an undivided 2/3rds share in the property subject to the mortgage. The learned Judge, acting on the decision in the case of Girish Chunder Dey v. Juramoni De 5 C.W.N. 83 came to the conclusion that the plaintiffs were entitled to redeem only a portion of the property. The decision on which the learned District Judges acted was, in my opinion, a wrong decision. The case on which the learned Judges who decided the case reported as Girish Chunder Dey v. Juramoni De 5 C.W.N. 83 rested their decision, namely, the case of Nawab Azimut Ali Khan v. Jowahir Sing 13 M.I.A. 404 : 14 W.R.P.C. 17 : 2 Suth P.C.J. 346 : 2 Sar. P.C.J. 573 : 20 E.R. 602 does not justify that decision. In the case of Nawab Azimut Ali Khan v. Jowahir Sing 13 M.I.A. 404 : 14 W.R.P.C. 17 : 2 Suth P.C.J. 346 : 2 Sar. P.C.J. 573 : 20 E.R. 602 the mortgagee had become the purchaser of a portion of the equity and, of course, a case of that nature is clearly distinguishable from the case where there has been a severance of the equity of redemption amongst parties other than the mortgagee. The sections of the Transfer of Property Act are quite clear on the point and the law is also quite clear. There are many decisions opposed to the decision reported as Girish Chunder Dey v. Juramoni Be 5 C.W.N. 83. It is sufficient to refer only to the oases of Huthasanan Nanibudri v. Parameswaran Nambudri 22 M. 209 : 8 Ind. Dec (N.S.) 149 and Mora Joshi v. Ram Chandra Dinkar Joshi 15 B. 24 : 8 Ind. Dec. (N.S.) 17. The observations of the Judicial Committee of the Privy Council in the case reported as Norender Narain Singh v. Dwarka Lal Mundur 5 I.A. 18 p. 27 : 3 C. 397 : 1 C.L.R. 369 : 3 Suth. P.C.J. 480 : 3 Sar. P.C.J. 771 : 2 Ind. Jur. 117 : 1 Ind. Dec. (N.S.) 839 are also clearly opposed to the decision reported as Girish Chunder Dey v. Juramoni De 5 C.W.N. 83. The sections of the Transfer of Property Act are also opposed to such a decision. The law as stated in the text books, so far as I am aware, is to the effect that in an ordinary case, the partial owner of the equity of redemption is entitled to redeem the whole mortgage. Nobody has ever heard that proposition doubted before and I think the decision in Girish Chunder Dey v. Juramoni De 5 C.W.N. 83 was founded on a misreading of the decision reported as Nawab Azimut Ali Khan v. Jowahir Sing 13 M.I.A. 404 : 14 W.R.P.C. 17 : 2 Suth P.C.J. 346 : 2 Sar. P.C.J. 573 : 20 E.R. 602. I think that, even accepting, although it is not necessary to decide that in this case, the learned Judge's finding that the plaintiffs have acquired only a 2/3rd share of the equity, the plaintiffs are notwithstanding that entitled to redeem the entire mortgage.

2. Then it is said that a point arises on the construction of the mortgage whether this case is not premature, because the redemption, according to the terms of the deed, is to take place on payment of the principal sum on the expiration of 1319 B. S., that is, 'the Yamasiray in 1320 B.S.' Exactly what the meaning of 'Yamasiray in 1320 B.S.' is, I do not know and, notwithstanding that we are assisted in this case by Bengali gentlemen who appear both for the plaintiffs and the defendant, they do not pretend to know what it means. Whatever Yamasiray in 1320 is, on the most liberal construction it must have long since expired. A discussion as to the meaning of the term will be purely academic and I think there is no use sending the case back for a decision as to what 'Yamasiray in 1320 B.S.' is.

3. In the result, the order of remand made by the learned District Judge must beset aside and the decree of the Munsif for redemption restored. The costs of this appeal and the costs of the appeal in the lower Appellate Court will be paid by the defendant to the plaintiffs. The order of the Court of first instance as regards costs will stand. We assess the hearing fee in this Court at two gold mohurs. Two months' time from the date of the arrival of the record in the Court of first instance is allowed to the plaintiffs to pay the money due to the defendant on his mortgage.

Newbould, J.

4. I agree.


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