Skip to content


Rajeswari Dasi and anr. Vs. Benoda Sundari Dasi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.533
AppellantRajeswari Dasi and anr.
RespondentBenoda Sundari Dasi and anr.
Cases ReferredAli Sahib v. Kaji Ahmed
Excerpt:
limitation act (ix of 1908), section 20 - acknowledgment by judgment-debtor, whether saves limitation against auction-purchaser--evidence act (i of 1872), section 69--proof of document where all attesting witnesses are dead. - .....no. 1. is the admission of defendant no. 1 binding on defendant no. 2, that is to say, is the auction-purchaser or his transferee bound by the admission of the judgment-debtor made before his purchase? it was said by the judicial committee of the privy council in the case of dinendronath sannial v. ramkumar ghose 8 i.a. 65 at p. 75 : 7 c. 107 : 4 shome l.r. 236 : 10 c.l.r. 281 : 4 sar. p.c.j. 213 : 5 ind. jur. 376 : 3 ind. dec. (n.s.) 619 (p.c.) that the auction-purchaser 'derives title by operation of law adversely to the judgment-debtor' but their lordships held in a later case mahomed mozuffer hossein v. kishori mohun boy 22 c. 909 : 22 i.a. 129 : 5 m.l.j. 101 : 6 sar p.c.j. 583 : 11 ind. dec. (n.s.) 602 (p.c.) that the auction-purchaser is bound by an estoppel binding upon the.....
Judgment:

1. This is a suit upon a mortgage bond Exhibit I said to have been executed by Bhim Karmakar, the deceased father of defendant No. 1, in favour of Jadumandal the husband of plaintiff No. 1, on the 9th August 1891. On the 18th of March 1898 defendant No. 1 executed a kobala in respect of some lands in favour of Jadumandal and in this document marked Exhibit II made an admission of the earlier mortgage of the 9th August 1891. On the 21st March 1898 one Basant purchased property No. 1 in execution of a money-decree against defendant No 1 and sold the same to defendant No. 2 on the 12th August 1898. The suit giving rise to this appeal was brought on the 16th March 1910 and would be barred by limitation unless the acknowledgment by defendant No 1 in Exhibit If can save it. Then arises the question whether Exhibit I has been proved in accordance with law. All the attesting witnesses including the scribe are dead. One witness Hazarilal has proved the handwriting of the attesting witnesses: he says he was present at the execution but does not say that he saw Bhim signing his name, nor does he say that the signature of Bhim on the document is the signature of Bhim. There is, therefore, a defect in the proof of the document under Section 69 of the Evidence Act. Does the admission in Exhibit II cure this defect? Defendant No. 2 claims under a purchase from Basant, who purchased at an auction sale the right, title and interest of defendant No. 1. Is the admission of defendant No. 1 binding on defendant No. 2, that is to say, is the auction-purchaser or his transferee bound by the admission of the judgment-debtor made before his purchase? It was said by the Judicial Committee of the Privy Council in the case of Dinendronath Sannial v. Ramkumar Ghose 8 I.A. 65 at p. 75 : 7 C. 107 : 4 Shome L.R. 236 : 10 C.L.R. 281 : 4 Sar. P.C.J. 213 : 5 Ind. Jur. 376 : 3 Ind. Dec. (N.S.) 619 (P.C.) that the auction-purchaser 'derives title by operation of law adversely to the judgment-debtor' but their Lordships held in a later case Mahomed Mozuffer Hossein v. Kishori Mohun Boy 22 C. 909 : 22 I.A. 129 : 5 M.L.J. 101 : 6 Sar P.C.J. 583 : 11 Ind. Dec. (N.S.) 602 (P.C.) that the auction-purchaser is bound by an estoppel binding upon the judgment debtor. Sir Charles Sargent, C.J., in the case of Ali Sahib v. Kaji Ahmed 16 B. 197 : 8 Ind. Dec. (N.S.) 609 held after reference to the former case, that although the title is derived from the judgment-debtor against his will, the purchaser's liability to be ejected nonetheless arises from the title which he has derived from the judgment-debtor.' The auction-purchaser was held to have derived his liability through the judgment-debtor. An acknowledgment, therefore, by a judgment-debtor may save limitation against the auction-purchaser. There is a further question, however, that arises in this case, and that is that the acknowledgment was made only three days before the auction-sale and must, therefore, have been made after attachment; does that make any difference? I think it does. The auction-purchaser is entitled to have the property purchased by him in the condition in which it was at the time of the attachment. The judgment-debtor is debarred by Section 64, Civil Procedure Code, from making any private transfer of any interest in the property after attachment. But for the acknowledgment the lien on the property attached would have expired before the present suit: the effect of allowing the acknowledgment to prevail would be to give a longer life to the lien, that is, to place a larger burden on the property than it bore at the time of the attachment. I think that the acknowledgment in this case, made as it was after attachment, cannot prevail against the auction-purchaser defendant No. 2.

2. In this view of the case the appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //