1877 NORENDUR SINGH AND v. DWARKA LAL Statement. Where property, though held in certain shares, is mortgaged as a whole, the mortgagee cannot obtain a foreclosure of the whole of the the estate, or of any part of it, upon a service on some only of the mortgagors. The year during which the mortgagor may redeem his property runs not from the date of the perwannah or the issuing of it by the Judge, but from the time of service. Mohesh Chunder Sen vs. Mussamut Tarinee, 10 W. R., 27, F. B.; 1 B. L. R., 14 F. B., cited and approved. APPEAL from a decree passed by a Division Bench of the High Court of Calcutta, (PHEAR and MORRIS, J.J.) This was a suit for khas possession, and partition with mesne profits, after a decree for foreclosure of a mortgage alleged to have been obtained under the provisions of Regulation XVII of 1806, in the Court of the Officiating Judge of Bhaugulpore, on the 24th of September 1867. The plaint was filed in the Court of the Subordinate Judge of Bhaugulpore on the 1st of October 1872; and the suit was brought against the mortgagors, and against purchasers from them subsequent to the mortgage who are hereinafter called the Mundur defendants. The mortgage (which was of undivided shares in joint property) was made by a deed of conditional sale to Rajah Tek Narain Singh (the ancestor of the plaintiffs), dated the 30th of November 1858, and executed by the proprietors of the shares. The amount mortgaged was one-third of the whole property, namely, 5 annas 3 gundas 1 cowri and 1 krant; and the deed declared that the conditional sale would become absolute in default of payment of the consideration money within two years from the date of the mortgage. In 1861 a lease of six annas of the entire property was taken by Rajah Tek Narain Singh in the name of another party. This lease included the property mortgaged, but did not refer to the mortgage. In 1861 and 1863 Rajah Tek Narain Singh bought from the mortgagors portions of the mortgaged property and took possession of those portions. None of these conveyances refer to the deed of mortgage. Rajah Tek Narain Singh died some time in 1865, and on the 29th of January 1866, his successors, the present plaintiffs, 1877 b NORENDUR NARAIN ANOTHER presented a petition for foreclosure of the mortgaged property, exclusive of the portions which passed under the conveyances of 1861 and 1863. Notice was directed to be issued to the mortgagors, and on the 24th of September 1867, it was ordered that foreclosure of the mortgage be duly sanctioned, notwithstanding DWARKA LAL the objections of some of the mortgagors who declared that the deed was a forgery. On the 15th of February 1867, the plaintiffs obtained a decree against some of the mortgagors for a debt of Rs. 87, in execution of which the mortgaged property was attached for the purpose of sale. Before the sale took place the Mundur defendants bought the property and paid off the decree-holders. Previously, in the year 1861, the Mundurs had bought another portion of the property, and at the time of the filing of the plaint in the present suit they were in possession of the whole of the property for which the plaintiffs sued; that is of the mortgaged property, excepting the portions of which Rajah Tek Narain Singh had obtained possession in 1861 and 1863 by virtue of the conveyances then executed. The defence was: (1) that the deed of conditional sale was a fabrication; (2) that the provisions of Regulation XVII of 1806, regarding service of notice of foreclosure, had not been complied with; and (3) that the plaintiffs could not claim partition without making all the proprietors parties to the suit. The lower Court overruled these objections and gave plaintiffs a decree. The Mundur defendants appealed to the High Court, where the following judgment was delivered by PHEAR, J. (MORRIS, J., concurring) :— v. MUNDUR AND OTHERS. Statement. 1874 April 13. Judgment, High Court. The plaintiff in this case says that, in November 1858, his ancestor purchased from certain vendors, called the conditional PHEAR, J. vendors, 5 annas 3 gundas 1 cowri and 1 krant share of Mouzah Mudehpore, subject to redemption by the vendors on repayment of the consideration money Rs. 5,000; and that he afterwards, between September 1861 and January 1868, purchased out and out from some of the mortgagors or conditional vendors their respective shares in the mortgaged property, amounting in the whole to 1 anna 15 gundas 2 cowries. These purchases must, 1877 of course, have been each subject to the mortgage of November NORENDUR 1858. NARAIN SINGH AND v. MUNDUR The plaintiff then says that in June 1867, he caused due noti fication of foreclosure to be given to the conditional vendors DWARKA LAL through the Bhaugulpore Civil Court; and that the mortgage AND OTHERS. money has not since been paid. And upon this title he brings this suit to obtain possession, not of the whole of the mortgaged Judgment, High Court. property, but of the difference between the 5 annas odd originPHEAR, J. ally mortgaged to his ancestor, and the 1 anna odd purchased by him subsequently to the mortgage; that is, of 3 annas 7 gundas 3 cowries and J krant. The plaintiff also asks for partition in his plaint, but he does not say what share he wants to have divided from the remainder of the property, or who his co-sharers are. And, although he brings this suit, as I have mentioned, to recover possession of 3 anuas 7 gundas 3 cowries 1 krant of the joint property, he does not say who of the defendants, 21 in number, are now enjoying this share or are keeping him from it, or even, whether or not, any of them are in possession of any portion of it; nor does he state any facts which would serve to connect any one of the defendants with the particular property or shares of property which are the subject of the mortgage. Of these 21 defendants we are only, concerned on this appeal with two sets, namely, one set, which may be termed Chooni Mundur's set, and the other Kunhya Lal Mundur's. Both these sets of defendants say that they are in possession of a certain share of this joint property, and they admit that they purchased what they have from some of the alleged mortgagors, a part of it at any rate after the date of the alleged mortgage deed. But they admit nothing more. Both of them object that the conditional sale was not a real transaction, even if it had existence at all, which they deny, and that they know nothing about the foreclo sure. Now it is quite plain on this state of facts that the plaintiff must, in order to make out a title to recover, first prove, not only that the property was mortgaged to him or to his ancestor, as he alleges it was, in 1858, but that he caused effective notification to be given to the representatives of the original mortgagors in 1877 NOREndur SINGH AND NARAIN ANOTHER v. MUNDUR AND OTHERS. June 1867, the date when he says that he caused the notification to issue. But we find no proof of service of the notification upon the original vendors or their representatives anywhere in the record. The utmost that we find tending in this direction is a petition, which is said to have been filed on the occasion of the DWARKA LAL foreclosure proceedings, as they have been termed. Now this petition can at the most show that the petitioners themselves admit that they had notice of the foreclosure. It cannot be evidence of all the original mortgagors-other than the petitioners or their representatives-having had notice of the foreclosure. And if any one of the mortgagors or his representative was not duly served with notice then the plaintiff must fail to establish his title by foreclosure. In this state of the case it is hardly, perhaps, necessary for us to mention that one of the original mortgagors, who was called as a witness, expressly states that notice of the foreclosure was not served upon him. It thus seems to be quite clear that the plaintiff has failed to take the very first step which he was obliged to take in order to prove his title to the property and the right to recover as against the appealing defendants. But we further observe that even if he had proved that the foreclosure had been duly effected, he would still have to prove that the share of this joint property, which the appealing defendants admitted that they had got from some of the mortgagors, was in fact a share or a portion of a share of the joint property which was the subject of the original mortgage. But there is no attempt, as far as we can see, made by the plaintiff to prove this. It must be remembered that the property mortgaged was but a 5 annas 3 gundas odd share out of the 16 annas; and the whole of the remaining shareholders have not been brought before the Court, or rather I should say, none of them has been. There is, in truth, a total failure of proof that the plaintiff is entitled to recover the share of the joint-property which is in the hands of either of the two appealing defendants. It therefore follows that the plaintiff's suit ought to have been dismissed. We are of opinion that the decree of the Subordinate Judge is wrong and must be reversed; and as against the appealing defendants the suit must be dismissed with costs in both the Courts. Judgment, High Court. PHEAR, J. NARAIN 1877 I intended to have mentioned, as a most important fact bearing NORENDUR upon the merits of the plaintiff's claim, that in the different transactions of purchase, which the plaintiff himself refers to, made by him or on his behalf between 1858 and 1868, there is no mention DWARKA LAL Whatever of the conditional sale upon which the plaintiff now relies; yet, as I have already remarked, these sales must have been effected subject to that mortgage, if that mortgage hadexisted. SINGH AND ANOTHER v. MUNDUR AND OTHERS. Judgment, High Court. PHEAR, J. 1877 November 22. Plaintiffs appealed to the Privy Council on the grounds: (1) that the defects in the plaint should not have been taken to prejudice the plaintiff's case in the Appellate Court, when the defendants appeared, and in their written statement disclosed their case, and took issues and went to trial thereon; (2) that the Court was wrong in holding there was no proof of service of notice of foreclosure (3) that there was no dispute in the Court below that the share of which the Mundurs had possession was the share which was the subject of the original mortgage, the only question being whether the Mundurs took a good title in respect of their purchases. The judgment of their Lordships (1) is as follows: This is an appeal in a suit brought by the heirs of Rajah Tek Narain Singh against certain parties, who may be described as the family of Dass, forming one set of defendants, and persons called Mundur who formed another set, the latter being purchasers of the property in question from the Dasses. The suit was brought for possession and for registration of names, (as stated in the plaint,) " with respect to 3 annas 7 gundas 3 cowries 1 krant out of 5 annas 3 gundas 1 cowri 1 krant, of Mouzah Dooram Mudehpore 'usli' with 'dakhili' Pergunnah Nesingpore Koora, the property referred to in the deed of conditional sale, after deducting 1 anna 15 gundas 2 cowries, the right and interest of Sri Narain Dass, Bachee Lal Dass, Rajah Ram Dass, Muhtab Dass, alias Laljee Dass, and Chuneelal Kishore Dass, purchased by your petitioner's ancestor, and the right and interest of Shunker Batti purchased at auction on the 10th of January 1868, subsequent (1) Sir JAMES W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE E. SMITH, and Sir ROBERT P. COLLIER. |