Shrish Chandra Roy v. Mungri Bewa — 1904 DIGILAW 128 (CAL)

JUDGMENT 1. This is a suit upon an unregistered instrument, dated the 8th January 1894, mortgaging both moveable and immoveable property brought by the mortgagee against the heirs of the mortgagor and the purchaser under a registered conveyance, dated 1st November 1897, of the immoveable property covered by the mortgage to recover the sum of Rs. 167-3-0 together with future interest by sale of the immoveable property mortgaged. The mortgage was executed in respect of a sum of Rs. 50 lent to the mortgagor Peer Buksh upon the security of his homestead and two carriages and three horses which remained in his possession. In November 1897 the mortgagor sold the homestead to the Defendant, Nistarini. On the 4th October 1898, the carriages and horses were sold in execution of a decree obtained against the mortgagor by one Bhagaban Das Agarwalla and were purchased by Chandra Kant Moitra and Bejoy Krista Roy subject to the Plaintiff's lien for the sum of Rs. 113. They were subsequently bought back from the purchaser by the Plaintiff for Rs. 118 and resold by him to third parties for the sum of Rs. 200. The Munsif held that as the Plaintiff purchased the horses and carriages subject to the lien created by the mortgage bond the sum of Rs. 200 should be credited to the mortgage debt which being less than this amount must be taken to have been discharged. He accordingly dismissed the suit and on appeal the District Judge on the same grounds confirmed his decision. Against the judgment of the District Judge, the Plaintiff has appealed to this Court. It has been contended for the Appellant that the lower Appellate Court erred in law in holding that the mortgage debt had been extinguished by the Plaintiff's purchase and sale of the carriages and horses and this contention has been supported on the following grounds. Against the judgment of the District Judge, the Plaintiff has appealed to this Court. It has been contended for the Appellant that the lower Appellate Court erred in law in holding that the mortgage debt had been extinguished by the Plaintiff's purchase and sale of the carriages and horses and this contention has been supported on the following grounds. Though the Plaintiff himself took from the deceased Peer Buksh a document hypothecating moveable property and though he applied when this property was about to be sold in execution and had it sold subject to his lien, it has been argued on his behalf that there cannot be in this country a hypothecation of moveable property and that that being so the carriages and horses were unaffected by the alleged hypothecation, the property therein remained in the mortgagor and all the subsequent transactions in connection therewith must be excluded from consideration in determining whether there is any, and what is the amount of, the mortgage debt. 2. It is no doubt the fact that no provision has been made either in the Transfer of Property Act or Contract Act with regard to chattel mortgages or hypothecations of moveable property and there is no enactment in this country similar to the English Bills of Sale Act. It does not however follow from this that such transactions are invalid and in fact recognition has been given to such transaction, in many cases some of which have been reported [see Deans v. Richardson 3 N.W.P. 54 (1871), Kywetnee v. Kokoung 5 W.R. 189 (1866), Shyam Soondar v. Cheita 3 N.-W.P. 71 (1871), Kalka Prasad v. Chandan Singh ILR 10 All. 20 (1887)]. The learned pleader for the Appellant has relied on the case of Debnarain Bose v. Leish 2 Hyde 267 (1864) in which there are some observations with respect to the necessity of possession being with a party who claims a lien as supporting his contention. The facts of that case however were very different from those now before us. There the claimant put forward her right to a lien on the stock-in-trade of the Defendant who was an insolvent as the executrix of the Defendant's deceased banian who had allowed the Defendant to appear to the world as the ostensible trader and owner of a large stock of goods over which there was in fact an alleged undisclosed lien. There the claimant put forward her right to a lien on the stock-in-trade of the Defendant who was an insolvent as the executrix of the Defendant's deceased banian who had allowed the Defendant to appear to the world as the ostensible trader and owner of a large stock of goods over which there was in fact an alleged undisclosed lien. If the claim had been allowed and the lien established its effect would be to defeat the Plaintiff who was a creditor of the Defendants under a decree It was also in fact found that there had been an agreement the effect of which would be to destroy the pre-existing lien had such in point of fact existed. On the other hand [In the matter of A. Summers ILR 23 Cal. 592 (1896)] the Court gave effect to an equitable lien on stock-in-trade of an insolvent being of opinion that enough was done to show that the stock-in-trade of the insolvent was not in his order and disposition at the date of his insolvency with the consent of the party claiming the lien. [See also Puninthavelu v. Bhashyam ILR 25 Mad. 406 (1901).] These and similar cases do not directly touch the matter before us. It is not necessary to consider the effect of such a lien upon third parties as no such question arises as to the moveable property hypothecated and the Defendant Nistarini purchased only the immoveable property as to which there was a validly executed mortgage. We have only in this case to decide whether there was as between the Plaintiff and Peer Buksh and his heirs a valid hypothecation of moveables and in our opinion there was such an hypothecation. We are of opinion that the hypothecation of the moveable property mentioned was valid and did confer upon the Plaintiff a good title against Peer Buksh and his heirs although not accompanied by possession. Moreover it is not open to the Appellant to contest the validity of the hypothecation to which he was a party and which he sought to have declared as a charge upon the property when it was sold in execution. 3. Moreover it is not open to the Appellant to contest the validity of the hypothecation to which he was a party and which he sought to have declared as a charge upon the property when it was sold in execution. 3. It has been nextly argued upon the assumption of the validity of the hypothecation of the moveable property that the transactions relating to the sale of the carriages and horses did not as the lower Courts have held totally extinguish the mortgage debt but only to the extent of Rs. 82 representing the difference between the amount Rs. 200 at which the horses and carriages were sold by the Plaintiff and the amount which he himself purchased them. We think that this contention is sound and therefore deducting the sum of Rs. 82 from the amount claimed there remains a sum of Rs. 85-3-0 together with interest; thereon pending suit and until date of realization which is due in respect of the mortgage debt. There can be of course no question as to the liability of the Defendants, heirs of the mortgagor, who have not appeared in this appeal to pay this amount out of the assets in their hands belonging to the estate of the deceased. 4. The learned pleader for the Respondent, Nistarini, the purchaser of the immoveable property mortgaged has however contended that the Plaintiff's mortgage has no validity as against his client's purchase and that the Plaintiff is not entitled to have the immoveable property sold in satisfaction of the mortgage debt. The Munsif held that as regards the land on which the mortgaged homestead stood, there was no satisfactory evidence to show that the mortgagor had a transferable interest in it; that in the absence of evidence to the contrary it must be held that Peer Buksh had no such interest in the laud and that both the mortgage and sale of the land (apart from the huts standing on them in which Peer Buksh was held to have a transferable interest) was invalid. It does not appear that there was any cross-appeal on this point by the Defendant Nistarini whose case was that at the time of her purchase she believed that Peer Buksh had a transferable interest in the land but that when she went to take possession after her purchase, she was opposed by the zemindar's men and was obliged to take a new settlement of the land from the zemindar on payment of a nazar. The District Judge disbelieved the Defendant Nistarini's story of a new settlement and held that as she had herself purchased the land she was estopped from questioning the transferability of the holding. No doubt as has been argued by the learned pleader for the Respondent no question of estoppel in the strict sense of that term arises. But we think upon a perusal of the whole judgment that what the District Judge meant to say and did in fact hold was that the holding was transferable and that the very fact that the Defendant Nistarini herself purchased it was together with the other facts in the case including the fact that she had set up an untrue story as to a new settlement strong evidence of such transferability. The learned pleader for the Respondent has further argued that assuming that the holding was transferable and that therefore both the earlier mortgage in favor of the Plaintiff and the later sale to his client by the mortgagor were valid yet inasmuch as the later sale was registered and the mortgage though not compulsorily registrable was unregistered, his client's sale took effect under sec. 50 of the Registration Act as against the Plaintiff's mortgage. We think that this contention must prevail. Under the law as it now stands in a competition between a document, which is compulsorily registrable and registered and one which is optionally registrable and unregistered the former will prevail [Shib Chandra Chakravatrti v. Johobux ILR 7 Cal. 570 (1881)] and the section itself expressly enacts that the rule contained in it is to apply whether the unregistered document be of the same nature as the registered document or not [see Soodharam Bhuttaharjee v. Ooday Chandra Bandopadhya. 10 B.L.R. 380 (1871)]. 570 (1881)] and the section itself expressly enacts that the rule contained in it is to apply whether the unregistered document be of the same nature as the registered document or not [see Soodharam Bhuttaharjee v. Ooday Chandra Bandopadhya. 10 B.L.R. 380 (1871)]. There is no statement in the plaint or allegation in the issues or evidence in the case that the Defendant Nistarini made her purchase with such notice of the Plaintiff's mortgage as would deprive her of the benefit of sec. 50 of the Registration Act as has been held by this and the other High Courts [Abool Hossain v. Raghunath ILR 13 Cal. 70 (1886), Krishnamma v. Suranna ILR 16 Mad. 148 (1892), Chinnnppa v. Manickavasagam ILR 26 Mad. 1 (1901), Hathisang v. Kuvarji ILR 10 Bom. 103 (1885), Sharfudin v. Govind ILR 27 Bom. 452 at p. 472 (1902), Diwan Singh v. Jadho Singh ILR 19 All. 145 (1896), Bhiki Rai v. udit Singh ILR 26 All. 366, 370 (1903)]. The mortgaged properties admittedly remained in the possession of Peer Buksh, the Defendant Nistarini's vendor, who had therefore no notice of title from possession and against whom or her vendor no fraud is alleged. We must therefore bold that the Defendant Nistarini's purchase takes effect as against the Plaintiff's mortgage and that the Plaintiff is therefore not entitled to enforce his mortgage by sale of the immoveable property in the possession of that Defendant. The learned pleader for the Appellant has contended that it is not open to the learned pleader for the Respondent under sec. 561 of the CPC to raise the point he has taken under sec. 50 of the Registration Act inasmuch as that was not a ground "decided against him" in the Court below. Though both the lower Courts having regard to the grounds of their decision have not considered it necessary to discuss the point the facts upon which it is based appear upon their judgments and are indeed admitted. 50 of the Registration Act inasmuch as that was not a ground "decided against him" in the Court below. Though both the lower Courts having regard to the grounds of their decision have not considered it necessary to discuss the point the facts upon which it is based appear upon their judgments and are indeed admitted. We think that where in such a case as the present one a ground for decision appears in the lower Appellate Court's judgment which if rightly decided would determine the appeal in the Respondents' favor, it must be taken that the Court decided that ground against the Respondent if it has omitted or refused to decide it in his favor and that it is not necessary to entitle a Respondent to support a decree upon a particular ground that the ground should have been in express terms decided against him. If it has not been decided in his favor it must we think for the purposes of sec. 561 be taken to have been "decided against him," within the meaning of that section. We therefore overrule this objection. The appeal must therefore be dismissed as against the Defendant Nistarini who has appeared with costs. The appeal is however decreed as against the other Defendants, the heirs of the deceased mortgagor. The Plaintiff is entitled to a decree under sec. 252 of the Code against these Defendants in their representative capacity for the sum of Rs. 85-3-0 together with interest thereon at the rate of six Per cent. until realization; such sum to be paid out of the assets if any of the deceased mortgagor. As these Defendants have not appeared we make no order as to costs against them.