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Amritalal Chatterjee and ors. Vs. Nritya Gopal Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in24Ind.Cas.465
AppellantAmritalal Chatterjee and ors.
RespondentNritya Gopal Ghose
Cases ReferredWebber v. Stanley
Excerpt:
mortgage deed - construction--patni of 9 villages--mortgage of seven--enumeration of total--patni rent--whether 2 villager not mentioned in mortgage--deed were mortgaged. - .....included not only the villages enumerated but also the two villages now in dispute, and that the rent mentioned, namely, rs. 4,055-5, was the rent payable in respect of all the villages comprised in the patni. on behalf of the mortgagor, it is contended that all that was intended to be mortgaged was the patni right in touzi mahal no. 390. on behalf of the defendants, it is contended that what was intended to be mortgaged was the patni right in all the villages comprised in the lease. the courts below have concurrently taken the view that the mortgage was intended to cover only the villages mentioned. the subordinate judge in support of this view has referred to the case of tribhovandas v. krishnaram, 18 b. 283. and has relied upon the principle that the leading description' must be.....
Judgment:

1. This is an appeal by the defendants in a suit for declaration of title to immoveable property and for recovery of possession thereof. The subject-matter of the litigation consists of the paint right in two villages Jalbondh and Alankar. It is not disputed that the plaintiff was originally the owner of the patni right in these villages. The question in controversy is whether that right has passed away to the defendants by virtue of an execution sale on the basis of a mortgage granted by the plaintiff in favour of Messrs. Robert Watson & Co. The case for the defendants is that these two villages, although not expressly mentioned in the mortgage deed, were included therein, and that the defendants, who are private purchasers from the mortgagees-execution purchasers, have acquired a good title thereto. The determination of this question must depend upon the construction of the following clause' in the mortgage instrument : ' In Zillah Murshidabad, Sub-Registry Kandi, Division Gokarna, Touzi mahal No. 390, Pergana Rokanpur, Tokchandpur Kismat, (1) 'Kumar Sanda, (2) Rameshwar-pur, (3) Nowda Hajipur jote, (4) Nowapara Kismat (5) Nandanbati, (6) Mouza Khesar, (V) Mouza Bibinagar alias Ratanpur, of which at the annual jama of Rs. 4,055-5 is recorded a patni in the name of Praneshwar Ghose and Kunjo Behary Ghose in the zamindari sherista of Maharaja Jotindro Mohan Tagore of the aforesaid patni mahal, the half share, eight annas of Praneshwar Ghose of which I am malik, I keep in mort-gage.

2. It is the common case of both the parties that the patni included not only the villages enumerated but also the two villages now in dispute, and that the rent mentioned, namely, Rs. 4,055-5, was the rent payable in respect of all the villages comprised in the patni. On behalf of the mortgagor, it is contended that all that was intended to be mortgaged was the patni right in Touzi mahal No. 390. On behalf of the defendants, it is contended that what was intended to be mortgaged was the patni right in all the villages comprised in the lease. The Courts below have concurrently taken the view that the mortgage was intended to cover only the villages mentioned. The Subordinate Judge in support of this view has referred to the case of Tribhovandas v. Krishnaram, 18 B. 283. and has relied upon the principle that the leading description' must be taken to be the specific enumeration as given in the instrument and that the incorrect mention of the annual rent does not affect the rights of the parties. This view has been controverted on behalf of the appellants in this Court and we have been invited to apply the rule laid down by Lord Westbury in West v. Lawday 11 H.L. Cas. 375 : 13 L.T. 171 : 11 E.R. 1378. in the following terms : That maxim to which I refer is applicable to a case where some subject-matter is devised as a whole under a denomination which is applicable to the entire land and the words of description that include and denote the entire subject-matter are followed by words which are added on the principle of enumeration, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent, universal or generic denomination.' This principle which was recognised in Griffiths v. Penson 8 L.T. 84 : 11 W.R. 313 : 9 jur. (N.S.) 385. and Travers v. Blundell 6 Ch. D. 436 : 36 L.T. 341. has no application to the facts of the present case : because we have not here, in the first place, words of a general description that include and denote the entire subject-matter followed by words of enumeration which turn out to be imperfect and not exhaustive. In the case before us we have in the first place, the enumeration of seven villages and the plain literal meaning of he language used is that the seven villages mentioned which are stated to be in Zillah Murshidabad, Sub-Registry Kandi, Division Gokarna, Touzi mahal No. 390, Perganah Rokanpur, are in a patni in the name of Praneshwar Ghose and Kunjo Behary Ghose recorded in the zemindari sherista of Maharaja Jotindro Mohan Tagore of which the annual rent is Rs. 4,055-5. In fact in so far as the deed states that the annual rental is the sum mentioned in respect of the patni of these villages, the description is inaccurate, because, the annual rent was payable in respect of the patni, which included these villages as well as those not specifically mentioned. But it appears to be plain that what was intended to be granted was a mortgage of the patni interest only with villages mentioned. It is otherwise ' impossible to understand why the other villages not mentioned should not have been included, and it is remarkable that the villages now in controversy lie in a different Touzi mahal, a different sub-registry and a different division from the villages which are expressly mentioned. We have, therefore, a case in which there is a specific mention of certain properties followed by a description which, if taken literally, would have the affect of widening the description which has preceded. In substance the contention of the appellants is that as the statement of the annual rent of Rs. 4,055-5 is applicable only to the entire patni consisting of villages mentioned and the villages now in controversy, that should be taken as the leading description and that the mortgage should be treated as operative in respect of villages not expressly mentioned in the deed. We are unable, for the reasons stated, to give effect to this contention, and the view we take is supported by the principle recognized in Webber v. Stanley 16 C.B. (n.s.) 698 : 33 L.J.C.P. 217 : 10 Jur (n.s.) 657 : 10 L.T. (n.s.) 417 : 12 W.R. 833 : 139 R.R. 672 : 143 E.R. 1301. We may add that some stress was laid, and very properly, upon the phrase the aforesaid patni mahal.' But we must take the description as a whole and try to ascertain the intention of the parties from the language used. It is plain that the use of the expression aforesaid patni' is not conclusive upon the decision of the question raised. The aforesaid patni' might apply to the patni of the seven villages and does not necessarily mean the patni of which the rent was Rs. 4,055-5. On the whole, we are of opinion that the view taken by the Courts below is correct and that the decree of the Subordinate Judge must be affirmed. The appeal fails and is dismissed with costs.


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