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Lazarannessa Bibi Vs. Mahomed Jaffar Lashkar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.336
AppellantLazarannessa Bibi
RespondentMahomed Jaffar Lashkar
Cases ReferredLuchmeshar Singh v. Dookh Mochan Jha
Excerpt:
mortgage - usufructuary mortgagee--suit for money--transfer of property act (iv of 1882), sections 67, 68. - carnduff, j.1. this appeal arises out of a suit brought by a usufructuary mortgagee for recovery of his mortgage-debt by sale of be property mortgaged. the suit was decreed by the court of first instance but on appeal it has been dismissed en two grounds, the first being that a usufructuary mortgagee cannot sue for sale, and the second that the holding mortgaged was not transferable.2. it is argued before me that the decision of the learned subordinate judge on the first point is erroneous, and i am referred to the judgment of a full bench of the madras high court in the case of kangaya gwrukal v. kalimuthu annavi 27 m. 526. as regards this case all that i need say is that it is not precisely in point and is distinctly opposed to the ruling of another full bench of the same court in the.....
Judgment:

Carnduff, J.

1. This appeal arises out of a suit brought by a usufructuary mortgagee for recovery of his mortgage-debt by sale of be property mortgaged. The suit was decreed by the Court of first instance but on appeal it has been dismissed en two grounds, the first being that a usufructuary mortgagee cannot sue for sale, and the second that the holding mortgaged was not transferable.

2. It is argued before me that the decision of the learned Subordinate Judge on the first point is erroneous, and I am referred to the judgment of a Full Bench of the Madras High Court in the case of Kangaya Gwrukal v. Kalimuthu Annavi 27 M. 526. As regards this case all that I need say is that it is not precisely in point and is distinctly opposed to the ruling of another Full Bench of the same Court in the case of Arunachalam Chetti v. Ayyavayyam 21 M. 476. It is also opposed to the law as laid down by a Division Bench of this Court in the case of Luchmeshar Singh v. Dookh Mochan Jha 24 C. 677 and it seems to me to be contrary to the express provisions of Sections 67 and 68 of the Transfer of Property Act, 1832. The remedy of the mortgagee to whom possession had not been given, was to sue for possession under his contract or to bring, under Section 68 of the Act referred to, a suit for money; and he chose to take the latter course. He clearly cannot turn his usufructuary mortgage into a simple mortgage, as is suggested by the learned Vakil on his behalf. There is here no question of the mortgage being anomalous. It is described as usufructuary, and I must treat it as such since it has not been translated or printed by the appellant. The appeal must consequently fail on this first point; and it is not necessary for me to consider the second. It is dismissed with costs.


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