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Calcutta High Court
Kunja Behary Shaha And Ors. vs Matu Bibi And Ors. And Mesan Bibi … on 26 March, 1909
Equivalent citations: 1 Ind Cas 661
Bench: Chitty, Vincent


1. These two appeals are preferred by the plaintiffs in two suits on mortgage bonds. In each of the two mortgage bonds two jamas were included. The plaintiffs were given decrees by both the lower Courts against the mortgagors, defendants Nos. 1 and 2 for the amount of the mortgage debt; but their suits, so far as they claimed to have their mortgage lien declared, were dismissed. They have preferred these second appeals and four questions have been raised by the learned Vakil for the appellants. The first point is that the question of transferability was not one which could be gone into in a mortgage suit and that it certainly could not have been taken by defendant No. 3 who was not only the purchaser of one of the jamas in each suit but also the 16 annas landlord. In support of his contention the learned pleader quoted the case of Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425. But that was a totally different case in its facts from the present one and has no bearing whatever upon it. There a third party set up a title paramount both to the mortgagor and the mortgagee. Here it is stated that defendant No. 3 by virtue of his purchase had acquired an interest in the equity of redemption; and the plaintiffs themselves made him a party on that footing. It is now sought to be argued that because ho was also a 16 annas landlord he could not raise this defence. The point is concluded by authority. The case of Asmatunnessa Khatoon v. Harendra Lal Biswas 35 C. 904 laid down that where a landlord in execution of a mortgage decree caused the sale of an occupancy holding and purchased it himself, he was not estopped from pleading non-transferability without his consent in a subsequent suit brought by the mortgagee of the occupancy holding. Here the landlord, the defendant No. 3, is said to have purchased in execution of his own decree. The case is therefore on all fours with the present one. The case of Hare Krishna Bhowmik v. Robert Watson & Co. 8 C.W.N., 365 is a further authority to the same effect. There Mr. Justice Banerjee pointed out that it would be impossible to split up the legal character of the defendants in the way in which they were asked to do in that suit and we are asked to do in this. Given that the defendant No. 3 has an interest in the equity of redemption it follows that he must be allowed to raise this objection to the plaintiffs’ claim; and it seems to us to follow that he must be allowed to raise it at the earliest possible opportunity, namely, in his defence to a suit of this nature. It would be anomalous if he had to wait until the property was sold and then to come in and make his objection. If he were postponed to a later period, having been a party to the suit, probably an attempt would be made to meet him with the plea of res judicata.

2. The second point raised was that defendant No. 3 having purchased only one of the properties included in each mortgage, could not raise the defence with regard to the other. The learned pleader for the appellants has been constrained to admit that he has no authority for such a proposition which appears to us to be quite untenable. If the properties stand in the same footing so far as the mortgagees are concerned, it would indeed be an anomaly if the Courts were constrained by reason of the lesser interest of the third defendant to do justice in respect of one of the properties only.

3. The third contention was that the landlord defendant No. 3 could not object because the whole property had not been transferred. But this is a point which does not seem to be based on any appropriate finding of fact. It does not appear in the pleadings that there was any question of the mortgages being of a portion of the jamas and the point does not seem to have been raised in the grounds of appeal here.

4. The fourth ground is that of estoppel. It is said that the third defendant recognized the plaintiff No. 1 as a mortgagee in a previous execution proceeding. It appears from the judgment of the first Court that plaintiff No. 1 was in the position of a judgment-debtor in those proceedings. But how he came to be so joined, the Munsif says, there is no evidence to show. Nor is there any evidence before us to show how this was so. We accordingly cannot assume that defendant No. 3 recognizes the plaintiff No. 1 as mortgagee without that fact being duly proved. This ground, therefore, also fails. The finding of fact that the holding is non-transferable has been arrived at by both the Courts below and is conclusive on the point so far as we are concerned.

5. The appeals, therefore, fail and are dismissed with costs.

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