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

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

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 18 - Cited by 24 - Full Document

Bisheshur Dial And Anr. vs Ram Sarup on 3 April, 1900

On the other hand, in Chunna Lal v. Anandi Lal 19 A. 196, and Bisheshur Dial v. Ram Sarup 22 A. 284 the purchase by the mortgagee was of the equity of redemption only, and it was held that the mortgagee could not, even as against the mortgagor, throw the burden of the entire debt upon the property which remained in the hands of the latter, while he himself held property which was justly bound to bear a proportionate share of the mortgage debt. In the second of these cases, which was decided by a Full Bench, it was ruled that when a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him, that is to say, a portion of the debt which bears the same ratio to the whole amount of the debt, as the value of the property purchased bears to the value of the whole of the property comprised in the mortgage.
Allahabad High Court Cites 5 - Cited by 18 - Full Document

Sesha Ayyar And Anr. vs Krishna Ayyangar And Ors. on 26 August, 1900

That a mortgagee may, however, at an execution sale, purchase a portion of the mortgaged property free of his mortgage, is clear from the cases of Sesha Ayyar v. Krishna Ayyangar 24 M 97, Kanhyalal v. Narhar 27 B. 297, Bokra Thakur Das v. Collector of Aligarh 28 A. 593 : 3 A.L.J. 439 : A.W.N. (1906) 150 and Raghunath Prasad v. Jamna Prasad Rawat 29 A. 233 : A.W.N. (1907) 31 : 4 A.L.J. 66. The distinction, therefore, is not so much between a private sale and an execution sale, as between a purchase of the equity of redemption and a purchase of the entire interest in the property.
Madras High Court Cites 13 - Cited by 10 - Full Document

Amir Chand vs Bukshi Sheo Pershad Singh on 30 August, 1906

This view is supported by the cases of Mahomed Taki v. Thomas 4 C.L.J. 317 and Amir Chand v. Bukshi Sheo Persad 4 C.L.J. 573, 34 C. 13, though the Courts are not agreed as to whether the question of apportionment, when it arises, can be decided in execution proceedings or should be determined in a suit properly framed for the purpose and in the presence of all the necessary parties.
Calcutta High Court Cites 1 - Cited by 12 - Full Document

Imam Ali vs Baij Nath Ram Sahu on 16 March, 1906

While, therefore, we adhere to the view taken in the cases of Imam Ali v. Baij Nath Ram Sahur 3 C.L.J. 576 : 33 C. 613 : 10 C.W.N. 551, and Hakim Lal v. Ram Lal 6 C.L.J. 46, namely, that a mortgagee, who has a security upon two or more properties which, he knows, be long to different persons, cannot release his lien upon one so as to increase the burden upon the others without the privity and consent of the persons affected, Kettlewell v. Watson (1882) 21 Ch. D. 685 (714), we are of opinion, that this doctrine has no application to the present case, where the release took place at a time when the appellants had not purchased any interest in the mortgaged premises, and the mortgagors alone were the persons affected by the release. We must not, however, be assumed to adopt the rule, laid down by the learned Judges of the Allahabad High Court, that such release may he granted even to the prejudice of persons who had previously acquired an interest in the mortgaged properties.
Calcutta High Court Cites 15 - Cited by 40 - Full Document

Pirbhu Narain Singh vs Amir Singh And Ors. on 7 March, 1907

That view is clearly opposed to principles of equity, justice and good conscience, and though recognised in Sheo Prasad v. Behari Lal 25 A. 79; Sheo Tohul Ojha v. Sheodan Rai 28 A. 194 : 2 A.L.J. 630 : A.W.N. (1905) 244; Ghafur Hasan Khan v. Muhammad Kifayat-ulluh Khan 28 A. 19 : A.W.N. (1905) 165 : 2 A.L.J. 413 and Pirbhu Narain Singh v. Amir Singh 29 A. 369 : A.W.N. (1907) 83, was not adopted in Ram Ranjan v. Indra Narain 33 C. 890 and the case of Krishna v. Muthu 29 M. 217, if it lays down a similar principle, cannot, to that extent, be supported.
Allahabad High Court Cites 3 - Cited by 13 - Full Document

Ram Ranjan Chakravarti vs Indra Narain Dass on 19 March, 1906

That view is clearly opposed to principles of equity, justice and good conscience, and though recognised in Sheo Prasad v. Behari Lal 25 A. 79; Sheo Tohul Ojha v. Sheodan Rai 28 A. 194 : 2 A.L.J. 630 : A.W.N. (1905) 244; Ghafur Hasan Khan v. Muhammad Kifayat-ulluh Khan 28 A. 19 : A.W.N. (1905) 165 : 2 A.L.J. 413 and Pirbhu Narain Singh v. Amir Singh 29 A. 369 : A.W.N. (1907) 83, was not adopted in Ram Ranjan v. Indra Narain 33 C. 890 and the case of Krishna v. Muthu 29 M. 217, if it lays down a similar principle, cannot, to that extent, be supported.
Calcutta High Court Cites 2 - Cited by 10 - Full Document

Nand Kishore vs Raja Hari Raj Singh And Ors. on 9 July, 1897

This view which at one time found favour with some of the learned Judges of the Allahabad High Court, has been subsequently abandoned--Nand Kishore v. Raja Hari Raj 20 A. 23.--nor has it been disputed that a mortgagee may purchase from the mortgagor the equity of redemption either in part or in whole; the relation between them is not so far analogous to that between a trustee and cestui que trust, as to preclude a purchase of the equity of redemption by the mortgagee. He may, therefore, deal with the mortgagor in respect of the mortgaged estate. This rule is subject to the qualification that the Courts, if called upon to scrutinise the transaction, will look upon it with jealousy, and will set aside a purchase made by the mortgagee when, by the influence of his position or by constructive fraud, he has gained an unconscionable advantage and has purchased the property for such a low price as may be taken to be fairly indicative of fraud or undue influence But, in the absence of fraud or undue influence or fiduciary relation, the mortgagee may purchase the equity of redemption of the mortgagor upon the same footing as any other person Webb v. (sic) (1806) 2 Suh & Lef.
Allahabad High Court Cites 3 - Cited by 4 - Full Document

Chunna Lal vs Anandi Lal And Ors. on 22 December, 1896

On the other hand, in Chunna Lal v. Anandi Lal 19 A. 196, and Bisheshur Dial v. Ram Sarup 22 A. 284 the purchase by the mortgagee was of the equity of redemption only, and it was held that the mortgagee could not, even as against the mortgagor, throw the burden of the entire debt upon the property which remained in the hands of the latter, while he himself held property which was justly bound to bear a proportionate share of the mortgage debt. In the second of these cases, which was decided by a Full Bench, it was ruled that when a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him, that is to say, a portion of the debt which bears the same ratio to the whole amount of the debt, as the value of the property purchased bears to the value of the whole of the property comprised in the mortgage.
Allahabad High Court Cites 1 - Cited by 5 - Full Document
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