Bombay High Court
R.S. Joshi vs L.B. Joshi on 8 July, 1878
Equivalent citations: (1878)ILR 2BOM650
JUDGMENT West, J.
1. The mortgage having been executed by three senior members of a joint family, the remaining member of which had disappeared, and setting forth a ground of necessity, was presumably a valid transaction, Nothing has been adduced, in the way of evidence, to overthrow that presumption.
2. The sale of the one-sixth share belonging to Parashram, the absent member was subject to the lien thus created.
3. The purchase of that share by the mortgagee's son, and his sale of it to the respondent's father, did not disturb this lien. The mortgage was registered, and the father, as that important transaction shows, was managing the family affairs. If he could be identified with his son, yet the sale-deed to the respondent's father sets forth distinctly the origin of the vendor's title. It was a purchase of a share, and this should have put the new purchaser upon inquiry.
4. The mere fact that, under such circumstances, the mortgagee's son bought and sold a share in the property mortgaged without disclosing the existence of the mortgage, was not enough to create an estoppel against the mortgagee. If there had been any active fraud, any artifice by which the mortgagee, directly or indirectly, had prevented the purchaser from his son from making the reasonable inquiry at the registration office, the case might be different.
5. We reverse the decree of the Joint Judge, and restore that of the Subordinate Judge, with costs throughout on respondent.