Court : Allahabad
Reported in : AIR1931All466
..... prior mortgagee's suit.100. there can be no doubt that the rule of lis pendens, generally speaking, applies to cases of transfer pending suit on a mortgage. thus, if where a mortgagee's suit is pending the mortgagor transfers his property voluntarily or, if his interest is attached in execution of a simple money decree and it is sold, the purchaser by private ..... treaty or the auction-purchaser would take the property subject to the result of the mortgage suit. again, if pending a mortgage suit, the ..... the defendant. it is not a case of a sale of the mortgagee's interest, but of the mortgagor's interest free from the mortgage. indeed, the defendant had no right whatsoever to transfer the mortgagee's rights. the property purchased at auction may not be co-extensive with that mortgaged, and in most cases is much less. can this be the result ..... , their lordships concluded that the law now was the same as had stood before the transfer of property act was passed. their lordships observed at foot of p. 475:an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a .....Tag this Judgment!
Court : Mumbai
Reported in : (1939)41BOMLR672
..... way of sale or second mortgage (see sections 81, 82, 91 and 94) and this right in india is a legal right. when therefore the mortgagor transfers his property by way of mortgage, can he be said to transfer his whole interest? russell j., in vithal nanayan v. shriram savant i.l.r. (1905) bom. 391 : s.c. 7 bom. l.r. 313, answers ..... no interest or no legal interest in the property remains in the mortgagor? their lordships cannot think so. if the subsection stopped at the word 'mortgagee', it might be necessary ..... recognises second mortgages) and with the possibility, well established in india, of transferring the right of redemption to a purchaser.37. bearing these considerations in mind it remains to consider the effect of the wording of section 58(e) of the act. that section speaks of the mortgagor transferring the 'mortgaged property absolutely to the mortgagee.' in using those words does it mean that ..... an estate in the land, and was not merely a personal contract on the part of the transferor.24. up to the time of the passing of the transfer of property act the rights of mortgagors and mortgagees of land in india were subject to much controversy, though in general the law of england, subject to such modification as justice, equity and good .....Tag this Judgment!
Court : Kolkata
Reported in : 64Ind.Cas.903
..... april 1-917 the mortgagor transferred the property to the fifth defendant, who dispossessed the plaintiffs. daring the period that the plaintiffs were thus in possession they received the rents and profits, and their contention is that this ..... (2) of the indian limitation act. the courts below have overruled this contention and dismissed the application.2. the case for the mortgagees decree holders is that in 1912 the mortgagor agreed to transfer the equity of redemption to them in satisfaction of their dues under the mortgage decree, that in pursuance of this agreement they entered into possession of the mortgaged ..... : 31 c.l.j. 75 : 24 c.w.n. 463] he has clearly acquired no valid title to the property by his purchase on the 1st april 1917, because, on this assumption, his vendor had no subsisting interest on that date to transfer. on the other hand, if he maintains that the contract for sale was not legally carried into effect, that ..... properties and that since then they have held possession, though the mortgagor did not carry out his agreement by execution and registration of the proper deeds. on the other hand, on the 1st .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1959Bom482; (1959)61BOMLR612; ILR1959Bom1112
..... to be paid in pursuance of an arrangement between the parties after the date of execution of the deed of mortgage. before receiving the consideration agreed to be paid the mortgagor transferred the property by a sale-deed to a third person and there was a contest between the mortgage & the purchaser. the patna high court held that the mortgage document became effective ..... future debt or the performance of an engagement which may give rise to a pecuniary liability.'from the plaint words of the statute for transfer of an interest in immoveable property to secure repayment of money, there need not be a present advance at the date of the execution of the deed. even an agreement to advance money ..... the court of the third joint civil judge (junior division), ahmedabad, for execution of the award. it appears that in the meanwhile the first defendant had transferred city survey no. 2281, one of the two properties mortgaged by him to the fourth defendant, under a sale-deed dated 20th october 1949 for rs. 10,000 to the second defendant. this sale-deed ..... under which the cash credit arrangement was extended by applications under exhibit 71 and exhibit 72 notwithstanding.10. section 58 of the transfer of property act which defines a mortgage states:--'a mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or .....Tag this Judgment!
Court : Kolkata
Reported in : 20ITR293(Cal)
..... 1931, this sale was confirmed.on 31st october, 1935, the mortgage obtained a personal decree against the mortgagor for rs. 1,27,179 and on 4th january, 1939, this personal decree was satisfied by the mortgagor transferring another property to the decree-holder which was worth rs. 50,000 and remitting the balance. the mortgagee of ..... . 59,000 received on 4th august, 1930, being the proceeds of the sale of the mortgaged property in execution, and an item of rs. 50,000 received on 4th april, 1939, which was the value of property transferred to the assessee in satisfaction of his personal decree.all the receipts total rs. 2,07,532. ..... sum of rs. 11,133-3-11 as interest and he directed that this sum would have to be credited as having been paid by the mortgagor.during the pendency of the mortgage suit a receiver was in possession who had collected rents and profits amounting to over rs. 65,000. the ..... hand, the taxing authorities contend that this income was not received or did not become taxable until this mortgage transaction had been completed by the acceptance of property worth rs. 50,000 on 4th january, 1939, in full discharge of all outstanding obligations. if course the income could not be said to have ..... 10th august, 1908, certain properties were mortgaged by an estate known as the searsole estate to messrs. laik banerjee & co. for rs. 1,00,000; interest on the mortgage money was to be paid at the rate of 7 per cent per annum. on the same date the mortgagors leased out the lands in .....Tag this Judgment!
Court : Chennai
Reported in : AIR1941Mad475; (1941)1MLJ388
..... to them under the mortgage decree, and in pursuance of the agreement the mortgagees went into possession, but they never received a valid conveyance. on the 1st april, 1917, the mortgagor transferred the property to the fifth defendant, who dispossessed the mortgagees. on the 2nd october, 1917, the mortgagees applied for a final decree for sale, but the objection was taken that the ..... six months being allowed for redemption. the respondent was impleaded as the fifth defendant in the suit. he had obtained a money decree against the mortgagors and had attached the equity of redemption of the mortgaged properties. the attachment was continuing at the time of the passing of the preliminary decree on the 8th april, 1926. in the month of july 1926 ..... the mortgagors conveyed the mortgaged properties to the appellant in satisfaction of the mortgage debt. thereupon the appellant went into possession of the properties and remained in possession until 1932 when he was dispossessed by the respondent, who had caused them to be sold ..... must accept his opponent as the mortgagee, in which case section 20 applies.4. in mohamed yusuf v. narayana pillai : air1937mad642 the facts were also very similar. in 1903 immoveable property was mortgaged to one narayanaswami iyer and in 1905 a second mortgage was created in favour of one swaminatha pillai. in 1906 narayanaswami iyer instituted a suit to enforce his .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1938Bom115; (1937)39BOMLR1309
..... also another ground on which the appellant's case must fail. this suit was filed after the transfer of property act was amended by the amending act xx of 1929. section 92 of the amended act provides that a person, who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee ..... mere fact that he had paid off the debt at the request of the mortgagor must be taken to have created an equitable charge in his favour on the property. section 92 of the transfer of property act which deals with subrogation provides that a person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the ..... rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such ..... clear therefore that at that time neither the plaintiff nor the mortgagor could possibly have had any intention of keeping alive the rights of the mortgagee in favour of the plaintiff, since they contemplated that as soon as the mortgagee was paid off, the full ownership of the property would be transferred to the plaintiff by the gift-deed. the endorsement on the .....Tag this Judgment!
Court : Mumbai
Reported in : (1917)19BOMLR194
..... 7 of their plaint and of establishing that those facts are sufficient to bring the (!8th section of the transfer of property act into operation. it is to be observed that the position of the mortgagor under this section cannot, by reason of the non-attestation of the deed, be better than it would have ..... part of the borrower. it must also be borne in mind that even if the mortgagor be in the first instance under no personal liability, such liability may arise under section 68 (b) or (c) of 'the transfer of property act.' from the argument advanced by the respondents it now appears that paragraphs 6 and ..... the deed itself. in the absence of the respondents the attention of the board does not seem to have been directed to section 68 of the transfer of property act, 1882, or to the effect of that section if the allegations of paragraphs 6 and 7 of the plaint were established.8. their lordships ..... enforced as a mortgage. the respondents did not appeal from and are bound by this decision. the sole question which remained therefore was whether there was any personal liability on the part of the mortgagor for payment of that portion of ..... out of the estate of the mortgagor, who was then dead.5. in the course of the action it appeared that the deed of the 14th april, 1896, was unattested and it was accordingly held by the subordinate judge that it could not, having regard to the transfer of property act, 1882, section 59, be .....Tag this Judgment!
Court : Allahabad
Reported in : 6Ind.Cas.838
..... that claim was rejected on the ground that he was merely a sub-mortgagee and, therefore, his remedy was against his mortgagor and not against the proprietor. subsequently basdeo was ejected from the property. he' then preferred the suit, out of which this appeal has arisen, for recovery of the damages sustained by him ..... having preferred an appeal against the order of the special judge rejecting his claim, and that not having done so, he cannot recover against his sub-mortgagor upon the special covenant entered into in his mortgage-deed. we are wholly unable to agree with our learned brother is this decision. ganga bishen gave ..... should be declared to be invalid, he, the executant, would be liable to pay the loss sustained by the mortgagee. the mortgagors took advantage of the bundilkhand encumbered estates act (act 1 of 1903). notices to claimants were issued in accordance with the provisions of that act. ganga bishen ..... , the mortgagee of the property from the proprietors, took no steps to realize the amount due to him under his mortgage of the 26th of june 1885. basdeo did prefer a ..... basdeo and in that mortgage he entered into the following absolute covenant viz., that if during the period of the mortgage, the property mortgaged, in any year by any reason, should pass out of the possession of basdeo, or the mortgage-deed for any reason .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1930Bom401; (1930)32BOMLR933
..... to gan savant v. narayan applies to them also. they may be said at most to support the proposition that under the law as it stood prior to the transfer of property act a mortgagor who had obtained a decree for redemption, which he might have executed but had failed to execute, could not bring a fresh suit for redemption. but they do ..... to be mortgaged having never come into the possession of the original mortgagee or the defendants. section 60 of the transfer of property act provides that where the mortgagee has not been put into possession the mortgagor would be entitled on payment of the mortgage money to require the mortgagee to deliver the mortgage deed if any to him and to reconvey the ..... allowed by the law for the execution of the decree, operates as a judgment of foreclosure, and debars the mortgagor from afterwards bringing a second suit to redeem the same property. the mortgage in that suit was prior to the passing of the transfer of property act. in that case, however, the facts stated show that the first suit in which the decree was ..... mortgagee does not apply for decree absolute, he does not get rid of the relationship of mortgagor and mortgagee and there is nothing to prevent the mortgagor or his representative from filing a suit for redemption. this case was governed by the provisions of the transfer of property act 1882 and the civil procedure code 1908. in ramji v. pandharinath ilr (1918) 43 bom. 334, 21 .....Tag this Judgment!