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1859 Supreme(SC) 7
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
MEMBERS OF THE JUDICIAL COMMITTEE.—THE RIGHT HON. LORD KINGSDOWN, THE RIGHT HON. SIR EDWARD RYAN, AND THE RIGHT HON. SIR JOHN TAYLOR COLERIDGE.
PRANNATH ROY CHOWDRY - Appellant
Versus
ROOKEA BEGUM; SYED AMAN ALLY, AND RAM RUTTON RAE - Respondents
On appeal from the Sudder Dewanny Adawlut at Calcutta.
Decided On : July 7 and 8, 1859.
Privy Councillor,- Assessor,-The Right Hon, Sir Lawrence Peel.
Possession consistent with a mortgage title is not adverse. Pending title litigation between other parties constitutes "good and sufficient cause" for a mortgagee's delay in foreclosing. A tender to redeem must be absolute and made by a party with a proven legal right to redeem.
Headnote:(A) Ben. Reg. III of 1793, sec. 14; Ben. Reg. II of 1805, sec. 3; Ben. Reg. XVII of 1806, secs. 7 & 8 - Mortgage by conditional sale - Limitation of suit - Adverse possession - Foreclosure proceedings - Validity of tender - Possession by a party claiming under the mortgagor or asserting a title consistent with the right to redeem is not adverse to the mortgagee's title. The pendency of litigation regarding the title of the property between the heirs of the mortgagor and a party in possession constitutes "good and sufficient cause" to excuse delay in initiating foreclosure proceedings.
(B) Validity of tender to prevent foreclosure - A tender of mortgage money to prevent foreclosure is invalid if it is accompanied by a protest or threat to sue for recovery of the amount. Furthermore, a tender made by a party who has not proved a legal title to redeem the mortgage is insufficient to stop foreclosure.
Facts of the case:
A mortgagee sought possession of property after foreclosing a mortgage created by deeds of conditional sale. A party in possession contested the suit, arguing it was barred by a twelve-year limitation period and that a deposit of the mortgage debt in court had prevented the foreclosure.
Findings of Court:
The court found that the possession was not adverse as it was consistent with the mortgage title and that the pending litigation over the property's title justified the delay. The foreclosure was held to be regular because the tender of money was conditional and made by a party without a proven right to redeem.
Issues: Whether the suit for possession was barred by limitation due to twelve years of possession by a third party, and whether the foreclosure was invalid due to the deposit of the mortgage amount in court.
Ratio Decidendi: Possession is not adverse if it is reconcileable with the mortgagee's lien. The pendency of a suit between the mortgagor's heirs and a possessor regarding the right to redeem provides sufficient cause for the mortgagee to delay his own suit. A valid tender to stop foreclosure must be absolute and made by a person with a recognized right to redeem.
Result: Decision reversed and judgment given for the Plaintiff with costs.
This suit was brought to obtain possession of a dwelling-house, land and premises, which had been foreclosed by the Appellant in. giving effect to two deeds of conditional sale and mortgage, called deeds of Bye-bil-wuffa, or Kut-kubala. The principal question raised was, whether the suit was barred by the Regulations of limitation III. of 1793 , sec. 14, and II. of 1805, sec. 3, cls. 3 & 4. The Sudder Court held, that as there had been twelve years possession by one of the Respondents, Ram Rutton Rae, the suit of the Appellant was barred.
The Suit arose under these circumstances — Meer Sydoo and Noor Jehan his nekahee wife, were, in 1825, in the possession and enjoyment of a house and land, part of the premises in question, situate in the village of Cossipore, in the suburbs of Calcutta, under a, pottah made out in the sole name of Noor Jehan.
On 23rd of March, 1825, Meer Sydoo and Noor Jehan jointly borrowed of the Appellant the sum of S. Rs. 4,001, in cash, and at the last-mentioned date jointly executed and delivered to him a Kut-kubala or Bye-bil-wuffa (deed of conditional sale) in the following form —" To the high in dignity, Baboo Prannath Chow-dry. This mortgage deed, or Kut-kubala, of the land and garden house, held under a Khirajee-pottah (rent lease), is executed in the year 1231, by Meer Sydoo and Bebee Noor Jehan, nekahee wife of the said Meer, inhabitants of Cossipore. In the village of Cossipore within the jurisdiction of Dihee, Punchannogram, is our dwelling-house, with the garden measuring 14 beegahs and 7 cottahs of land, the annual rent of which is Rs. 38. 10a. 18g. Having mortgaged the said garden house and jumma lands, with the appurtenances, to you, we have received Rs. 4,001, as a loan through Bamchunder Bose, of Cossipore, on which we will pay interest at one rupee per mensem ; the term of payment of the money is three years, from the date of the deed of mortgage, that is, up to 11 Cheyt, 1234. We shall pay the whole of the money with interest at once within this term. If we do not pay the money with interest at once within the term, the sale of the said land, with the appurtenances, will become absolute on the day after the expiration of the term for the said amount, as consideration money, and you being in possession of the said land after the expiration of the term, and having obtained a pottah in your own name, shall, with your descendants, enjoy the proceeds by paying the Government Revenue. The right of alienating the said lands, either by gift or sale, will rest with you ; we shall have no claim or objection. Any deed of payment of money produced by us, other than that of redemption of mortgage, by repayment of the money at once, is null; and if the money should have to be paid by the sale or mortgage of the said land, it will be sold to you at a reasonable rate, or mortgaged, if it will have to be mortgaged. If we sell or mortgage to anybody else, it will be null and void. "We or our heirs shall never raise any objections in violation of these terms ; and should we do so, they will be false and null. Having received the said amount of Rs. 4,001, from hand to hand in ready money, we have of our free will executed this mortgage deed, or Kut-kubala. Dated the 1.1th Cheyt of the aforesaid year."
Sometime afterwards, and on the 4th of May, 1825, Meer Sydoo and Noor Jehan borrowed a further sum of S. Rs. 1,000, from the Appellant; and at the same time respectively executed and delivered to him another Kut-kubala to secure by a like conditional sale of the same dwelling-house, land and premises mentioned in the first Kut-kubala, the repayment to him of the further sum borrowed, together with interest at the same rate, and at the same date (namely, 11 Cheyt, 1234), subject to the like terms and conditions as those respectively specified in the former instrument.
On the 25th of May, 1825, Meer Sydoo died, leaving Noor Jehan surviving, and also two minor sons, Meer Imdad Ally and Meer Lootf Ally,
