Back
1941 Supreme(Cal) 223
CALCUTTA HIGH COURT
Edgley, J., Biswas, J.
Saradindu Mukherjee - Appellant
Versus
Jahar Lall Agarwalla - Respondent
Decided On : 17-06-1941
Headnote:
Mortgage - Enforcement - English Mortgage - Limitation Act, 1908 - Sections 31(c), 63, 67, 68 - Transfer of Property Act, 1882 - Section 67 - Bengal Money-lenders Act, 1940 - Sections 2(2), 2(21), 2(22), 30, 31, 34, 36 - - The court held that the suit was governed by Article 147 of the Limitation Act, 1908, and not by Article 132, as the mortgages were executed before the amendment made by Section 31(c) of the Act 20 of 1929. The court also held that the partition was not a fair or equal partition, and the mortgage was enforceable against a half share of every other item of property specified in the mortgage deeds. The court further held that the additional written statement filed by the defendant was rightly rejected by the court below. Finally, the court held that the appellant was entitled to relief under the Bengal Money-lenders Act, 1940, and the preliminary decree for foreclosure made by the court below would be affirmed, subject to the modifications required under the Act.
Fact of the Case:
The plaintiff sued to enforce two English mortgages executed in his favor by the executors of a deceased's estate. The defendant, a purchaser of a share in the mortgaged property, argued that the plaintiff's mortgage lien could only attach to the properties allotted to the mortgagors in a subsequent partition. The defendant also claimed priority over the plaintiff by virtue of certain payments made to satisfy prior mortgages.
Finding of the Court:
The court found that the partition was not a fair or equal partition, and the plaintiff's mortgage was enforceable against a half share of every other item of property specified in the mortgage deeds. The court also found that the defendant's claim of priority was not valid, and the additional written statement filed by the defendant was rightly rejected. The court further found that the appellant was entitled to relief under the Bengal Money-lenders Act, 1940, and the preliminary decree for foreclosure made by the court below would be affirmed, subject to the modifications required under the Act.
Issues: The issues in the case were: (1) whether the suit was governed by Article 132 or Article 147 of the Limitation Act, 1908; (2) whether the plaintiff's mortgage was enforceable against the properties allotted to the mortgagors in a subsequent partition; (3) whether the defendant's claim of priority was valid; (4) whether the additional written statement filed by the defendant was rightly rejected; and (5) whether the appellant was entitled to relief under the Bengal Money-lenders Act, 1940.
Ratio Decidendi: The court held that the suit was governed by Article 147 of the Limitation Act, 1908, as the mortgages were executed before the amendment made by Section 31(c) of the Act 20 of 1929. The court also held that the partition was not a fair or equal partition, and the plaintiff's mortgage was enforceable against a half share of every other item of property specified in the mortgage deeds. The court further held that the defendant's claim of priority was not valid, and the additional written statement filed by the defendant was rightly rejected. Finally, the court held that the appellant was entitled to relief under the Bengal Money-lenders Act, 1940, and the preliminary decree for foreclosure made by the court below would be affirmed, subject to the modifications required under the Act.
Final Decision: The appeal was dismissed with costs, and the preliminary decree for foreclosure made by the court below was affirmed, subject to the modifications required under the Bengal Money-lenders Act.
JUDGMENT
Biswas, J. - This is an appeal on behalf of defendant 3, and arises out of a suit which was commenced by the plaintiff to enforce two English mortgages which had been executed in his favour on 20th May and 29th September 1919. There were five defendants in the suit, and a preliminary decree for foreclosure was made against them all by the First Additional Subordinate Judge of 24-Parganas on 29th July 1935. The present appeal is directed against this decree. Since this appeal was presented, the final decree was passed on 23rd November 1938, whereby the defendants and all persons claiming through them were absolutely debarred of their right to redeem the mortgaged properties. No appeal has been preferred against this final decree, but a copy has been placed on the records of this appeal, and following the procedure Laid down by the Full Bench in Taleb Ali and Another Vs. Abdul Aziz and Others, AIR 1929 Cal 689 , it should be the duty of this Court in dealing with the present appeal to give necessary and consequential directions regarding the final decree.
2. The facts giving rise to this litigation are as follows : On 30th September 1906, one Mohendra Nath Das, a wealthy Hindu governed by the Dayabhaga school, died leaving a will, executed a few years before his death, whereby he had endowed all his properties, moveable and immovable, for the worship of a family deity called Sri Sri Iswar Mahadeb or Shib Thakur. The will was in due course admitted to probate by the executors. Shortly thereafter, on 27th March 1909, a nephew (brother's son) of the testator, named Charu Chandra Das, commenced a suit (suit No. 313 of 1909) against the executors on the original side of this Court, in which he claimed that the properties left by Mohendra were joint properties and that he had inherited an eight anna share in the same. He accordingly asked for a declaration of his title and for partition. On 12th June 1912, a preliminary decree was passed in the suit, declaring Charu's title to a half share as claimed, and directing a partition by metes and bounds. No steps, however, were taken by Charu to enforce a partition under the decree. It was while the properties still remained joint that the executors of Mohendra's estate effected the present mortgages in favour of the plaintiff, the first on 20th May 1919 and the second, a deed of further charge, on 29th September following. The security offered was the testator's declared undivided share in the properties left by him, which comprised some lands at Belur and Ultadinghi and two brick-built houses in Calcutta, namely 5, Padma Nath Lane and 88, Beadon Street. The principal amounts secured by the two mortgages were Rs. 3500 and Rs. 2500 respectively, carrying interest at the rate of 12 per cent. per annum compound with quarterly rests, and the due date fixed for the repayment of the loans was 20th May 1920. Meanwhile, Charu had got heavily involved in debts, both secured and unsecured and on 1st September 1919, on the petition of a creditor, he was adjudicated an insolvent by an order of this Court in its insolvency jurisdiction. The result was that his properties, being the undivided eight anna share decreed to him in the partition suit, vested in the Official Assignee. The Official Assignee in due course advertised the said share for sale for payment of the insolvent's debts, and this attracted defendant 3, Saradindu Mookerjee, as an intending purchaser.
3. It is stated on behalf of Saradindu that he had dealings from before with Charu as well as with the executors of Mohendra's estate, but whether that is a fact or not, it appears that on 4th August 1920, he did enter into an agreement with the Official Assignee, to which both Charu and the executors were made partiRs. The terms of this agreement, which really constitutes the foundation of Saradindu's claim in this suit, will have to be examined later, but it "will be sufficient to state at this stage that Saradindu thereby agreed to pur
