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Documents citing Debendra Nath Sen vs Mirza Abdul Samed Seroji And Ors. on 18 February, 1909

Dhirendra Nath De vs Naresh Chandra Ray And Ors. on 30 January, 1958

10. The necessary consequence of the above findings is that Section 168A of the Bengal Tenancy Act does not stand in the way of enforceability of the contract creating the charge. The position, however, is that the property, on which the charge is sought to be created, namely, one-sixth share in the putni, has ceased to exist and its place has been taken by the compensation which is payable to the intermediary, the owner of the one-sixth share of the putni, by the State of West Bengal. It is well settled that where property subject to mortgage or charge undergoes transformation, the mortgage or charge attaches to the form it takes after the transformation. (Vide the decision reported in Debendra Nath Sen v. Mirza Abdul Samad Seraji, 10 Cal LJ 150 (H). It is true that no prayer for a charge being declared on the compensation money was made. It could not be made when the suit was brought as at that time the property was in existence. When, however, a matter like this comes to the notice of the Court and the correctness of the allegation of fact, that the property has ceased to exist and its place has been taken by the compensation that will be payable, is not disputed, I think it wholly improper and hypertechnical for this Court to refuse to give a decree declaring a charge on the compensation merely because there has been no formal prayer before this Court. It may be mentioned that, in the additional grounds that were taken in this appeal, this point was definitely raised.
Calcutta High Court Cites 11 - Cited by 2 - K C Gupta - Full Document

Aghore Nath Mukerjee And Ors. vs Kamini Debi on 15 December, 1909

9. The third ground put forward by the appellants is to the effect that Kamini ought not to be allowed to hold the office of shebait as by Reason of her past conduct and present position she is completely disqualified. Our attention has been invited to the fact that in 1883 Kamini executed a mortgage of a portion of the endowed properties and dealt with it in derogation of the trust; it has also been suggested that if a suit is now brought by the mortgagee, Kamini as the mortgagor would, as laid down by the Court in Debendra Nath Sen v Abdul Samad 10 C.L.J. 150 : 1 Ind. Cas. 264, be debarred by the doctrine of estoppel from questioning the validity of the mortgage. Now it may be conceded that a trustee who deals with the trust property for his own personal advantage renders himself liable to be removed. Exparte Phelps (1742) 9 Mod. 357 : 88 E.R. 505. In the present case, however, Kamini executed the mortgage in perfect good faith; she did so at a time when the High Court had declared that there was no vaild endowment and that the property was secular, subject to a religious charge. The mortgage transaction cannot, therefore, be treated as a deliberate act of bad faith and does not by itself disqualify her for the office of shebait.
Calcutta High Court Cites 7 - Cited by 28 - Full Document

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

2. It may be conceded that, as a general rule, the rights of persons who have acquired an interest in the mortgaged estate since the mortgage, cannot be defeated or impaired by any subsequent arrangement to which they are not parties. If, therefore, a mortgagee with notice that the equity of redemption in a part of the mortgaged property has been conveyed, releases any part of the mortgaged estate, he must abate a proportionate part of the mortgage debt as against such purchaser. But this rule does not apply when the mortgagee releases a portion of the mortgaged property before the residue is transferred to third person. No doubt, if he does release, he diminishes his own security but, as Subsequent purchasers can only take subject to the mortgage, the mortgagee may throw the whole burden of the mortgage debt on the residue. It was pointed out by this Court in the case of Debendra Nath Sen v. Mirza Abdul Samed 10 C.L.J. 150 : 1 Ind. Cas. 264, that, although a purchaser of mortgaged premises is not estopped by his mere acceptance of the deed from disputing the validity of the mortgage or the amount due under it, on the ground of objections which were open to the mortgagor, yet he is limited to such objections or defences only as might have been pleaded by the mortgagor himself; and he cannot even set up all of these, for he is not permitted to urge defences strictly personal to the mortgagor. The appellants, therefore, by their purchase of the 7th July, 1904, occupy the same position as their vendors, the mortgagors, and it is not open to them to compel the mortgagee to grant a proportionate abatement of the mortgage debt, unless it is established that such a defence would have been available to the mortgagors themselves. Now, what was the position of the mortgagors at the time when they transferred the equity of redemption to the present appellants? They had transferred their interest in some of the mortgaged premises to the mortgagee. The effect of the transaction was that the mortgagee became entitled to hold the properties purchased by him free of the mortgage lien, if he applied the purchase money towards the satisfaction of the mortgage debt. It is difficult to appreciate upon what principle the mortgagors could be allowed to resile from the position they had deliberately assumed, and to contend that the mortgagee was bound, in substance, to allow credit, not merely for the purchase-money, but for an additional sum, which, upon a fair valuation of the properties purchased by him, might be determined to be the difference between the market-value and the settled price. It has not been suggested that the effect of the purchase by the mortgagee was to extinguish his mortgage security in its entirety.
Calcutta High Court Cites 10 - Cited by 13 - Full Document

Kanchan Mandar And Ors. vs Kamala Prosad Chowdhury And Anr. on 10 August, 1914

Upon this question, there has been some fluctuation of judicial opinion, but, as was explained in the case of Debendra Nath Sen v. Mirza Abdul Samed 5 Ind. Cas. 264 : 10 C.L.J. 150, upon a review of the authorities, it is now well-settled that a purchaser at an execution sale is bound by the same rule of estoppel as the judgment-debtor, on the principle that the former has purchased merely the right, title and interest of the latter and does not consequently occupy a position of greater advantage.
Calcutta High Court Cites 5 - Cited by 8 - Full Document

Krishna Charan Barman And Ors. vs Sanat Kumar Das And Ors. on 17 May, 1916

In this view, it is unnecessary to consider the application of the principle enunciated in Hakim Lal v. Bam Lal 6 C.L.J. 46 and Debendra Natli Sen v. Mirza Abdul Samed Seroji 1 Ind. Cas. 264 : 10 C.L.J. 150. Consequently the decree in this case must be a joint decree in favour of the plaintiffs, for such sum, if any, as may be found due upon the mortgage accounts against all the defendants (other than the mortgagor who has been released).
Calcutta High Court Cites 12 - Cited by 8 - Full Document

Govinda Mohapatra vs T. Venkatakrishnayya And Ors. on 13 May, 1949

The adjudication may be called for either by a claim or by an objection to the attachment. In the present case, it was an objection propounded by the decree-holder and was decided judicially. The order, therefore, cannot be brushed aside as a pure administrative order but ia a judicial order binding upon the parties before the Court and their privies, namely, the decree-holder, the judgment-debtor and the auction-purchaser who purchased a right not higher than that of the judgment-debtor. To quote Mukherji J. of the Calcutta High Court (Debendra Nath v. Abdul Samad, 10 C. L. J. 160 at pp, 164 and 166: (1 I.C. 264).) "does it then make any difference if the purchaser acquires title not by a private sale but by a sale held in execution of a money decree ? In our opinion, it does not. That this view is correct cannot of course he disputed where the sale is made expressly subject to the martgage or where only the equity of redemption is seized and the purchaser bids only the value of such equity.
Orissa High Court Cites 25 - Cited by 2 - Full Document
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