Court : Kerala
Reported in : AIR2008Ker165; 2008(1)KLJ690
..... the purpose of article 134, that the mortgagee should have thought he was absolute owner if in fact he was mortgagee and immaterial whether he got possession before, under or after ..... had obtained qua mortgagee. it is immaterial, for ..... other than express transfer of the original mortgage. the article contemplates a transfer by a mortgagee purporting to transfer larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage. the article is not, however, limited in its application to cases where the mortgagee, transfers the property mortgaged while still ostensibly a mortgagee, nor to cases where the mortgagee transfers possession which he .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1952Bom217; (1951)53BOMLR299
..... mortgagee. it is immaterial, for the purpose of article 134, that this mortgagee should have thought he was absolute owner if in fact he was mortgagee and immaterial whether he got possession before, under or after ..... . section 59a, t. p. act, includes within the description of 'mortgagees' also persons deriving title from the mortgagees and the transferees of the mortgagee's rights would be in no better position than the mortgagees themselves. the complication, however, arises in those cases where the mortgagees transfer or convey not merely their mortgagees' interest in the mortgaged property but purport toconvey to transferees a larger interest than what ..... the original mortgage. the article contemplates a transfer by a mortgagee purporting to transfer a larger interest than that given by the mortgage or at any rate an interest unencumbered by a mortgage. the article is not, however, limited in its application to cases where the mortgagee, transfers the property mortgaged while still ostensibly a mortgagee, nor to cases where the mortgagee transfers possession which he had obtained qua .....Tag this Judgment!
Court : Allahabad
Reported in : AIR1951All433
..... .'9. to my mind there is no question of the cause of action not accruing in a suit foe recovery of possession against a transferee of the mortgagee. if a mortgagee transfers the property not in his capacity as a mortgagee but as an owner of the property the law gives a right to the mortgagor to recover possession of the mortgaged properly against the ..... mortgagee's transferee irrespective of the contract in the mortgage. the transferee cannot take shelter behind the contract of the mortgage because he has himself been a party ..... known to the plaintiff' in place of the words 'the date of the transfer' in col. 3 of article 134. the position, therefore, now is that where a mortgagee has transferred his property alleging himself to be the owner of the property and not merely the mortgagee thereof and the transfer comes to the knowledge of the mortgagor, the mortgagor is bound to sue within ..... payment which has not yet expired, the mortgagor could not redeem the property mortgaged or recover possession of the property and the suit would be premature. but in order to protect transferees of the property from mortgagees for valuable consideration when the transfer is not of the mortgagee rights merely, but of the property itself, the legislature has provided for a fresh period of limitation for .....Tag this Judgment!
Court : Chennai
Reported in : AIR1966Mad64
..... . 134, that the mortgagee should have thought he was the absolute owner, if, in fact, he was the ..... the original mortgage.the article contemplates the transfer by a mortgagee purporting to transfer a larger interest than that given by the mortgage, or, at any rate, an interest unencumbered by a mortgage.the article is not, however, limited in its application to cases where the mortgagee transfers the property mortgaged while still ostensibly a mortgagee, nor to cases where the mortgagee transfers possession which he had obtained qua ..... mortgagee.it is immaterial, for the purpose of art .....Tag this Judgment!
Court : Mumbai
Reported in : (1929)31BOMLR854
..... facts and documents are examined it appears that the defence founded on article 134 cannot be supported. the transfer of property mortgaged contemplated by article 134 is admittedly something other than an express transfer of the original mortgage. the article contemplates a transfer by mortgagee purporting to transfer a larger interest than that given by the mortgage or at any rate an interest unencumbered by a ..... 134, which fixed the period of lord atlcin limitation for a suit, 'to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration', at twelve years from the date of the transfer. no evidence had been given in the court below to support the plea. such evidence must include all ..... view. it appears to them to be immaterial that the mortgagee should have thought he was absolute owner if in fact he was mortgagee; and immaterial whether he got possession before, under or after the mortgage if in fact he purported to transfer the property to the transferee. but in the present case the transfer which is exconcessis ineffective to give the absolute title was .....Tag this Judgment!
Court : Chennai
Reported in : 56Ind.Cas.146
..... him from subsequently suing the promisor under the chose-in-action the right to recover on the chose-in action is in the mortgagee. language of section 134 of the transfer of property act indicates the same conclusion. the section speaks of the transferee of a chose in action, to whom it has been assigned ..... an accessory right. if the mortgagee, owing to his default, failed to recover the money, as pointed out by the learned chief justice in muthukrishna aiyar v. veeraraghava aiyar 21 ind. cas ..... unable to understand the idea which underlies this contention. as we pointed out, the only person who can sue upon the chose in action is the mortgagee. no suit by the assignee of a chose-in-action against the assignor to recover money is contemplated, consequently there is not a principal right and ..... the court of law would recognise as entitled to maintain an action for the recovery of the amount due, that being the position of a mortgagee of a chose-in action, we are wholly unable to understand the somewhat hazy notion which seems to have guided the subordinate judge in dealing with ..... may be, we shall also deal with the second appeal on that assumption without deciding the point.2. the first question for consideration is whether the mortgagee of a chose-in action is entitled to institute in his own name a suit to recover the amount due under it. so far as this .....Tag this Judgment!
Court : Kolkata
Reported in : (1886)ILR13Cal346
..... declaring the mortgagees' right to the property subject to the liability to 'transfer' it to the mortgagor on payment of the sum found due within a certain date. if payment is not made on or before the date fixed, the mortgagor ..... absolute decree has yet been made in this case.4. we think that, looking to the terms of s, 86 of the transfer of property act, it may fairly be said that the mortgagees had such an interest in. the property as entitled them to make an application under section 311 of the code. a decree under section 86 virtually has the effect of ..... of the petition of bhagabati churn bhuttacharjee chowdhry i.l.r. 8 cal. 367 : 10 c.l.r. 441, that a mortgagee was not a person whose property had been sold within the meaning of that section. against that order the mortgagees now appeal.3. it is pressed upon us on their behalf that a decree for foreclosure having been made on the ..... prinsep and beverley, jj.1. the appellants, who are the mortgagees of a certain tenure obtained a decree for foreclosure under section 86 of the transfer of property act. that decree was made on the 11th september 1884, and declared that, on failure to pay the amount due, the mortgagor's right of redemption should be barred on .....Tag this Judgment!
Court : Chennai
Reported in : 4Ind.Cas.357
1. we think the decision of the lower court is right. assuming that the 1st defendant was entitled under the powers conferred upon him as mortgagee by exhibit-a to admit tenants to items nos. 1 to 22 when they became vacant, we think he had no right to admit himself which he did by including these lands in his patta. a mortgagee is in the position of a trustee and cannot grant leases or make other dispositions of the mortgaged property in his own favour and of such a kind as to give rise to a possible conflict between his interest and his duty. we also think the district judge is right in coming to the conclusion that the 1st defendant did not part with his interest in these items by transferring them to the pattah of his undivided son. we think that where a person in the position of a trustee makes a grant of the trust property to his undivided son the relation of the parties is sufficient to raise the presumption that he is himself interested and to bring the case within the mischief of the rule.2. these observations also apply to item no. 23 which was granted by the 1st defendant on cowle to his son the 2nd defendant.3. the appeal is dismissed with costs.Tag this Judgment!
Court : Mumbai
Reported in : (1939)41BOMLR1068
..... s share after his death; whether, the condition prohibiting her from making a mortgage or other transfer is bad under section 10 of the transfer of property act, 1882 ; or whether she took 'an interest in property restricted in its enjoyment to the owner personally' within clause (d) of section 6 of ..... sufficiently plain. their lordships consider that the high court rightly refused to regard the mortgage deeds sued upon as conferring any right against the properties comprised therein.9. the high court gave the appellant a money decree for the sum of rs. 4,000 referred to in the mortgage ..... is followed by words which give her a 'right to appropriate the profits,' but deny her the 'power of making a mortgage or other transfers.' inartificial language may be construed in the light of the circumstances and given a meaning applicable to the subject-matter. the respondent in order ..... right to appropriate the profits therefrom after paying the government revenue and the other government dues, without a power of making a mortgage or other transfers, that if bahuria moti rani kunwar dies before the death of me, babu narbadeshwar sahai, then l, babu narbadeshwar sahai, shall, as ..... properties, but the respondent had derived title to them in the same way-viz., under a deed of partition dated january 20, 1925, which had been embodied in a compromise decree dated march 27, 1925. the first question which arises upon this appeal is whether the respondent's interest under this compromise was a transferable .....Tag this Judgment!
Court : Mumbai
Reported in : (1926)28BOMLR1091
..... was held that it was contemplated by the proviso to section 24 of the indian stamp act that, in order to entitle a mortgagor to a deduction when transferring his property mortgaged to the mortgagee, the property transferred ought to be identical with that mortgaged and should not merely form part thereof. in in re nirahui references were made by the commissioner in respect of ..... of 'conveyance' and 'instrument' in section 2 of the act. a previous instrument cannot, therefore, be taken into consideration in deciding whether the whole mortgaged property (and not merely a portion of it) 'is transferred' to the mortgagee within the meaning of the proviso.18. the present, no doubt, is a 'hard case'; but it is for the legislature to remedy this, and ..... s.no. 294 was conveyed to nagu and the two previous deeds were cancelled.5. it will be seen that a portion of the property originally mortgaged was transferred in full satisfaction of the amount due to the mortgagee. in the second case, a, b, c and d, mortgaged a moiety of four survey numbers for rs. 400. later on, a and b ..... mortgage. but, it is contended, he cannot do this because the mortgage was originally a mortgage on other property as well as on the property under transfer. the duty levied on the original mortgage cannot be split up, and, on transfer of a portion, the mortgagee cannot get credit either for duty paid on the whole of the mortgage money or for duty paid on .....Tag this Judgment!