Johur Mull Khoorba vs Tarankisto Deb And Ors. on 23 May, 1883

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Calcutta High Court
Johur Mull Khoorba vs Tarankisto Deb And Ors. on 23 May, 1883
Equivalent citations: (1884) ILR 10 Cal 252
Author: Pigot
Bench: Pigot


Pigot, J.

1. The plaintiff claims as a purchaser of the share and interest of Woopendra Narain (who is mentioned in the 7th, 9th, and 14th paragraphs of the plaint) in certain family property in which Woopendra Narain is stated to have had an interest, together with the defendants, or those whom they represent, by inheritance, and also under the provisions of the deed mentioned in the 9th paragraph of the plaint.

2. Woopendra Narain mortgaged his share in the property (described in the plaint simply as lots one to five); and under a decree in a suit brought on the mortgage, the property mentioned in the mortgage was sold under the Rules for the sale of mortgaged property.

3. The plaintiff became a purchaser of part of the property at the sale by the Registrar under the decree, and he now prays for a declaration of his rights under the purchase; be submits that he is entitled to specific shares in the properties mentioned, and prays in the alternative for a declaration as to how much he so became entitled to, and for a partition.

4. The sale took place, as stated in the plaint, under the rules for the sale of mortgaged property. The Registrar certified the result of the sale under Rule 415, and no application appears to have been made to discharge or vary the certificate, which would under Rule 417 be deemed to be confirmed, unless such application were made within the time prescribed by the rules.

5. But no conveyance, such as is contemplated by Rule 431, was executed. The plaintiff relies upon the certificate issued by the Registrar after the sale by him, and argues that that sale passed the property-no application such as is contemplated by Rule 417 having been made, and the sale mentioned in the certificate having thus become by virtue of that rule confirmed. But I don’t think that gives a title such as to enable the plaintiff to maintain this suit. I regard his position as that of a person clothed with a right to a conveyance in virtue of a contract of sale; he does not hold, save as regards the parties to the contract of sale, the position of owner. Here the sale having become confirmed, the purchaser is entitled to a conveyance, and until he obtained a conveyance I do not think that, having regard to Rule 431, the property in the estate purchased passed to him so as to give him rights as against parties not bound by the decree under which the sale took place, and as regards them I consider his position to be analogous to the position of a purchaser as described for instance by Cottenham, L.C. in Tasker v. Small 3 M. & Cr. 71 70.

6. I have been referred to a case, Tara Prasad Mytee v. Nund Kishore Giri I.L.R. 9 Cal. 482 decided this year. But I apprehend that the learned Judges in that case said no more than that a sale under the Code of Civil Procedure when confirmed by the Court passes the property.

7. That decision does not touch this case. Here there was no certificate of sale issued under the Code, and no confirmation of a sale so certified. I learn from the Registrar that Rule 431 was drawn up in contemplation of this point. After consideration by Sir Richard Couch, and the rest of the Court this rule was expressly framed so as to exclude the issue of a certificate under the Code. The result is that there passed to the plaintiff, not the estate in the property purchased, but only as regards the defendant in the suit, an equitable estate and a right to a conveyance of the property.

8. The estate in the property purchased not having passed to the plaintiff, he is not entitled to maintain a suit for partition; he could not on a partition give a good conveyance to the other parties interested in the estate, nor is he entitled as against them to the declaration prayed for.

9. The suit is dismissed with costs.

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