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Documents citing Mir Eusuff Ali And Ors. vs Panchanan Chatterjee on 1 June, 1910

Thuvoor Venkatasubba Reddy vs Bagiammal on 12 January, 1915

With the greatest deference, I know of nothing in the Act to support this limitation and it is to be noted that in a later case reported as Mir Esuff Ali Haji v. Panchanan Chatterjee 6 Ind. Cas. 842 : 15 C.W.N. 800 : 11 C.L.J. 639 Mr. Justice Mookerjee, who was a party to the prior case, limits it specifically to cases where the release took place after the purchase of an interest in the mortgaged premises and considers it inapplicable to the case where the mortgagors alone were the persons affected by the release.
Madras High Court Cites 17 - Cited by 1 - Full Document

T. Venkata Subba Reddi vs Bagiammal on 12 January, 1915

217 at p. 224, and also on the dictum of Mookerjee, J., in Mir Eusuff Ali Haji v. Panchanan Chatterjee (1910) 11 C.L.J. 639 at p. 648. The language used by the learned Judges on page 224 is as follows: "It remains only to observe, etc...." It is to be noted that in the view of the learned Judges the limitation of the mortgagee's right arises where his action has had the effect of relieving the discharged property from its liability to bear its proportion of the debt; and the argument addressed to us is based on the assumption that Section 82 of the Transfer of Property Act which creates the right to contribution does not apply where one of the mortgaged properties has, at the time of the suit, been discharged from liability. The words are "where several properties are mortgaged to secure one debt, such properties are liable to contribute rateably to the debt." It is argued that the words "are mortgaged" mean "are at the date of suit, liable on an existing mortgage" and that they cannot be read as meaning "where several properties have been mortgaged to secure one debt the right to contribution arises" and that therefore, the mortgagee having put it out of the power of one mortgagor to get contribution an equity arises in favour of the remaining mortgagor which limits the mortgagee's right to rateable contribution. It is, to my mind, a little difficult to see how a mortgage can be extinguished so as to prevent contribution but be kept alive for the purpose of ascertaining rateable proportion. But I do not think it necessary to decide here whether the right of contribution has, in fact, been lost; that question may arise in another suit: I am unable however to accept the view that even if it is lost this right of equitable limitation exists. It seems to me that we should be very slow in introducing equities into the statutory mortgage law of this country based on equitable doctrines applied to English mortgages. The right of contribution is itself an equity, and an equity specially introduced by statutes. If under the English Law of mortgages there is an equitable limitation to the mortgagee's right, it was perfectly open to the framers of the Act to introduce that equity by suitable provision. They have not chosen to do so and in my humble opinion, it is not the function of the courts to do so for them.
Madras High Court Cites 18 - Cited by 1 - Full Document

Pranballav Saha And Anr. vs Bhagban Chandra Seal And Ors. on 17 April, 1934

7. The American law is stated in Jones on Mortgage, para. 723 as follows: The mortgagee who has actual or constructive notice of the equity of such purchaser must regard it and therefore if he releases a part of the mortgaged debt he must abate a proportionate part of the mortgage debt as against such purchaser. The principle on which this rule is based is explained in one of the American cases: in 66 Am. St. Rep. 87 Brooks v. Benham, 66 American St. Rep. 87, cited in the decision of A. T. Mukerjee, J., in 15 C. W. N. 800 Mir Eusuff v. Panchanan, (1911) 15 CWN 800, at p. 805 in the following words:
Calcutta High Court Cites 6 - Cited by 0 - Full Document

H.V. Low And Co., Ltd. vs Pulinbiharilal Singha And Ors. on 5 April, 1932

26. But it is not enough to deal with the question as one between the mortgagors on the one hand and the mortgagee on the other, because the case before us is one in which the rights of a third party, namely, the appellants, have intervened and these rights would certainly require protection. The matters which have to be considered in this connexion are: firstly, whether the splitting up, to which the appellants were not parties, can be regarded as valid as against them; and secondly, whether the appellants' right to redeem has been prejudiced by the mode in which the charge has been sought to be enforced. So far as these matters are concerned there is again some divergence of judicial opinion, but upon a question which does not arise in the present case. This conflict has been pointed out by Mookerjee, J., in the case of Mir Eusuff Ali Haji v. Panchanan Chatterjee (1910) 15 CWN 800 at pp. 805-6 in the following words:
Calcutta High Court Cites 34 - Cited by 1 - Full Document

Jugal Kishore Sahu And Anr. vs Kedar Nath And Anr. on 4 July, 1912

In the recent case of Mir Eusuff Ali Haji v. Panchanan Chatterjee (1910) 15 C.W.N. 800 the Calcutta High Court quote with approval the following statement of the law from an American case Brooks v. Benham 66 Am. St. Rep. 87: " While the whole of the debt is secured by the whole of the land, each parcel of the land as between the different properties is equitably subject to so much of the debt as corresponds to the proportion between its value and the value of all the land, and if its owner should be compelled to redeem the mortgage, he can resort to the others for a contribution, and for that purpose is entitled to the benefit of subrogation to the mortgage title. To release any particular parcel from the mortgage encumbrance is to make as respects that any subrogation impossible. The mortgagee, therefore, releases at his peril if he had notice of the conveyance out of which the equities arise, and if he does so without receiving from the release his proper contributory share of the debt, he is still chargeable with the residue of that share in favour of the owners of the remaining parcels." Whether this view is correct or not, it seems clear that a mortgagee cannot release part of the mortgaged property for less than its proportion of the mortgage debt and then sue the mortgagor and a puisne mortgagee for the whole of the balance of the mortgage money. Under Section 74 of the Transfer of Property Act a puisne mortgagee is entitled to redeem the next prior mortgagee as soon as the amount due on that mortgage has become payable, and when he has done so, he acquires all the rights and powers of the prior mortgagee as such. In England in a suit by a prior mortgagee against the mortgagor and puisne mortgagees the decree may provide for the exercise by the puisne mortgagees of their successive rights of redemption or for working out the rights of the parties in the event of any puisne mortgagee in front of the mortgagor redeeming the mortgaged property.
Allahabad High Court Cites 6 - Cited by 0 - Full Document

Behari Lal Sen vs Indra Narayan Bandopadya And Ors. on 31 March, 1927

The mere circumstance that plaintiff's claim is statute barred as against the other defendants does not offer any defence to Defendant No. 1 in view of the circumstances that there is a covenant to pay not merely joint but joint and several. There can be no doubt therefore that his debt was not released. Is there any reason why the whole of that debt should not be recovered from the share of Defendant No. 1. We have had cited to us certain decisions, and the learned Judge in his judgment mentions some observations made in the case of Mir Eusuff Ali Haji v. Panchanan Chatterjee [1910] 11 C.L.J. 639. Now, the line of cases which has been relied upon in this appeal goes upon this principle, that a mortgagee who has a security upon two or more properties which he knows to belong to different persons cannot release his lien upon one so as to increase the burden upon the other without the privity or consent of the persons affected. The Subordinate Judge points out that that line of cases is not at all applicable as between the original parties to the mortgage and that it is a firmly settled doctrine that, as between the original parties, the release of a part of the premises does not affect the lien of the mortgagee upon the residue which is bound for the whole debt.
Calcutta High Court Cites 9 - Cited by 2 - Full Document

Rajani Kanta Ghosh And Ors. vs Sourendra Nath Mitter And Ors. on 17 June, 1932

9. But I know of no authority for the proposition that where without any de-fault of his own it turns out that a mortgagee is unable to have recourse to a part of the mortgaged property by reason of it having been assigned by the mortgagor, the mortgagee cannot recover the whole of his debt out of one or all the properties which he is able to reach. I do not admit that the mortgagee owes a duty to each mortgagor to sue all the other mortgagors or their assignees in good time. It is open to a mortgagor to pay of his mortgagee whenever he likes. If he wants to do that to protest him-self he can do it even if it is not his duty to do it. Some of the dicta in Imam Alt's case (1906) 33 Cal 613 may require further consideration, but in any event they must be taken together with what was said in Mir Eusuff v. Panchanan (1911) 6 I C 842. On the facts of the present case I am satisfied that there is no sound proposition of law which entitles us to hold that because the Paikpara defendants did not come to the plaintiffs' knowledge till after 12 years from the date of the mortgage the plaintiffs must forgo the proportion of the mortgage debt represented by their interest. That being so, this appeal fails and must be dismissed with costs. The cross-objection not being pressed is dismissed without costs.
Calcutta High Court Cites 5 - Cited by 2 - Full Document

Jasodha Kumar Dey vs Kali Kumar Dey And Ors. on 12 February, 1930

3. As that learned Judge was of opinion in the case before him that it was clear from the conveyance executed by the mortgagor in favour of the mortgagee that the property purchased was the entire interest in it and not merely the equity of redemption, the mortgagee was allowed to claim the entire debt from the rest of the properties. As the point has been fully discussed in that case it is not necessary to refer to all the authorities on the subject; but reference may be made to a case which went to the Judicial Committee where this point was also raised and discussed.
Calcutta High Court Cites 2 - Cited by 5 - Full Document
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