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Lodobi Shaik Umar . v. Shankarlal Pannalal Kalantri .
Judgment Summary — Dixit, J.
Factual and Procedural Background
The respondent sued the mother of the present appellant to enforce a mortgage dated 28-3-1926. The defendant (the appellant's mother) principally contended at trial that the mortgage was not supported by consideration and alternatively that she was an agriculturist. The trial Judge rejected these defences and decreed in favour of the plaintiff for Rs. 10,000 with costs and future interest at 6% on a principal sum of Rs. 5,000.
The defendant's mother sought leave to appeal in forma pauperis to this Court by Civil Application No. 337 of 1942, accompanied by a memorandum of appeal. The Court referred the question of pauperism to the lower Court. The original defendant died and the present appellant (her daughter) applied to be substituted as legal representative and to be allowed to appeal in forma pauperis (Civil Application No. 906 of 1942). Wassoodew, J. wrote "Granted" on 18-11-1942. The lower Court reported that the legal representative was not a pauper. When the matter was before Lokur, J. on 5-4-1943, he held the applicant was a pauper, granted leave to file the appeal in forma pauperis and ordered the already-filed memorandum of appeal to be "Admitted: Notice".
The appeal before this Bench raised a preliminary point by the respondent that Lokur, J.'s order was defective for failing to comply with the proviso to Rule 1 of Order 44 of the Civil Procedure Code (CPC). The Court proceeded first to determine that procedural point and then disposed of the appeal on its merits.
Legal Issues Presented
- Whether the order of Lokur, J. granting leave to appeal in forma pauperis complied with the proviso to Rule 1 of Order 44 CPC (i.e., whether the Court should have recorded brief reasons when granting such leave).
- Whether the respondent (mortgagee) is entitled to proceed against the properties described in Schedule B to the plaint where those properties had been allotted to the mortgagor under a later partition/compromise decree (i.e., whether a partition/allotment defeats the mortgage claim as envisaged by the Privy Council rule on co-sharers' mortgages).
- Whether the mortgage deed was supported by consideration as found by the trial Judge.
- Whether the defendant should have been held to be an agriculturist for the purposes relevant to the suit.
Arguments of the Parties
Appellant's Arguments
- The respondent is not entitled to proceed against the properties described in Schedule B because those properties differ from the properties that were the subject-matter of the mortgage; Schedule B properties were allotted to the defendant in a 1938 compromise decree and, relying on a Privy Council decision, the appellant argued that the mortgagee's security was lost as against properties allotted to other co-sharers.
- The mortgage deed was not supported by consideration; the contention was that certain items forming the alleged consideration were not advanced on the mortgage date but on dates shown in promissory notes.
- The defendant should have been treated as an agriculturist (presumably affecting enforceability or remedies available).
- Prior to the substantive points, implicitly the appellant raised that Lokur, J.'s order admitting the appeal in forma pauperis was defective for failure to record reasons in compliance with the proviso to R.1, O.44 (this was raised by the respondent as a preliminary point — see below).
Respondent's Arguments
- A preliminary contention was raised that Lokur, J.'s order granting leave to appeal in forma pauperis was bad because it did not comply with the proviso to Rule 1 of Order 44 CPC which requires the Court to see reason to think the decree is contrary to law, or otherwise erroneous or unjust (and the jurisprudence requires reasons to be recorded when admitting a pauper appeal).
- As to the merits, the respondent asserted that the properties in Schedule B were liable for the mortgage-debt as alleged in the plaint and relied on the pleadings presented at trial; the trial court had already rejected the appellant's defences of want of consideration and agriculturist status.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 28 Bom. 451 (referred to; Sir Lawrence Jenkins) | When granting leave to appeal in forma pauperis (pauper appeal), the admitting Judge or Bench should briefly express and record the reasons for granting leave so that the Bench hearing the appeal can be assured the leave was properly given. | The Court agreed with this principle, noted Lokur, J. did not record reasons, but held that omission did not render the order void. The Court nonetheless observed that it is desirable for the Judge to record brief reasons. The Court therefore proceeded to decide the appeal on its merits. |
| Privy Council decision reported in 59 I.A. 405 | Where a co-sharer mortgages his undivided share of jointly held properties, the mortgagee takes the security subject to other co-sharers' right to partition; if, after partition, the mortgaged properties are allotted to other co-sharers, those allotted properties (absent fraud) take free from the mortgage and the mortgagee can proceed only against properties allotted to the mortgagor in substitution for his undivided share. | The Court applied this principle to facts it regarded as essentially identical: the mortgagor had conveyed properties as if sole owner though some were co-owned; after partition/allotment the properties in Schedule B were allotted in the decree and therefore the appellant's contention failed. The Court held the appellant had "dearly no case" on this point and rejected the challenge. |
Court's Reasoning and Analysis
The Court addressed the preliminary procedural question first: it analysed the sequence required when an application for leave to appeal in forma pauperis is made together with a memorandum of appeal. The Court held that the necessary first step is to determine whether the applicant is in fact a pauper; only if the applicant is a pauper does the proviso to Rule 1 of Order 44 CPC (which requires the Court to see reason to think the decree is contrary to law or otherwise erroneous or unjust) become relevant.
The Court accepted the decision in 28 Bom. 451 that a Judge admitting a pauper appeal should briefly record reasons for granting leave to give assurance to the eventual Bench. It observed Lokur, J. did not record reasons, but considered it "extremely unlikely" that the judge was unaware of the proviso; nevertheless, the Court emphasised that recording reasons is desirable. The failure to record reasons did not render Lokur, J.'s order invalid in the present case. Having resolved the procedural objection, the Court proceeded to the merits.
On the substantive issues, the Court addressed three points taken by the appellant:
- Property in Schedule B: The appellant relied on the Privy Council's rule for co-sharers' mortgages. The Court found the facts in the present case analogous: the mortgagor had mortgaged properties as if sole owner though some properties were co-owned; subsequently a settlement/partition decree allotted properties (Schedule B). Applying the Privy Council principle, the Court held that, absent fraud, the mortgagee's security is limited to those properties allotted in substitution for the mortgagor's undivided share, and therefore the appellant's contention that the plaintiff could not proceed against Schedule B had no substance. The Court rejected the contention.
- Consideration: The appellant suggested the mortgage deed was not supported by consideration, arguing certain items were not advanced on the mortgage date. The Court noted that the trial Judge had considered the evidence and found the mortgage was supported by consideration of Rs. 5,000. The Court found no basis to overturn that finding and rejected the contention.
- Agriculturist status: The appellant argued the defendant should have been treated as an agriculturist. The trial Judge had concluded that the defendant's non-agricultural income exceeded agricultural income. The Court found nothing to contradict that conclusion and accepted the trial Judge's finding, rejecting the appellant's contention.
On the whole, after applying the cited precedents and reviewing the trial findings, the Court concluded that all contentions urged by the appellant failed.
Holding and Implications
Holding: The appeal is DISMISSED.
Direct consequences and orders given in the opinion:
- The appeal fails and is dismissed with costs.
- Civil Application No. 593 of 1943 (a rule arising in the proceedings) is discharged with costs.
- Although the appellant had been allowed to prefer the appeal in forma pauperis, because the appeal failed the appellant is ordered to pay to Government the amount of court-fee upon the claim in appeal (viz. Rs. 10,000) as if she had not been allowed to appeal in forma pauperis.
Broader implications: The Court applied established precedent (including the Privy Council rule on co-sharers' mortgages and the local rule favouring recording reasons when admitting a pauper appeal) but did not purport to lay down any new principle of law. The decision's principal effect is the dismissal of this appeal and the related orders as stated above.
Dixit, J.:— In this appeal a preliminary point has been raised on behalf of the respondent and the facts necessary to understand the points are these.
2. The respondent filed against the mother of the present appellant the suit giving rise to this appeal in order to enforce a mortgage dated 28-3-1926. In that suit the principal contention of the defendant was that the mortgage was not supported by consideration. The other defence was that the defendant was an agriculturist. The learned trial Judge negatived both these contentions and he proceeded to pass a decree in favour of the plaintiff for the sum of Rs. 10,000 with costs and future interest at 6 per cent, on the principal sum of Rs. 5000. From that decree the mother of the present appellant preferred an application in this Court for leave to appeal in forma pauperis. Along with the application she also presented a memorandum of appeal. That was by Civil Application No. 337 of 1942. On 10-4-1942, this Court made an order referring the question of the pauperism of the original appellant to the lower Court in order to find whether the applicant was a pauper. It seems that the original defendant died sometime after the papers were received in the lower Court and the lower Court reported the fact of the death of the original appellant to this Court. Subsequently an application was made by the present appellant, who is the daughter of the original defendant, being civil Application No. 906 of 1942, and by the application she prayed that she be substituted as the legal representative of the original appellant and that she might be allowed to appeal in forma pauperis. On 18-11-1942, Wassoodew, J. made an order upon the application in the word “Granted”. The matter was referred back and the lower Court reported that the legal representative was not a pauper. When the matter came before Lokur, J. on 5-4-1943, for final disposal, he, however, held that the applicant was a pauper and accordingly he granted her leave to file the appeal in forma pauperis. Upon the memorandum of appeal which had been already presented he made an order: “Admitted: Notice”. It is under those circumstances that the appeal comes up before us for final disposal, and the preliminary point taken is that the order of Lokur, J. granting leave to file the appeal in forma pauperis is bad since it does not comply with the terms of the proviso to R. 1 of O. 44 of the CPC. The proviso to R. 1 is in these terms:
“Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.”
3. The proviso in terms does not say that reasons should be given while granting the application. It has, however, been ruled in a decision of this Court reported in 28 Bom. 4511, that in granting leave to appeal as a pauper the Court should he careful to see that the proviso to section 592 of the cpc, (act [XIV] of 1882) is satisfied and that the Judge or Bench admitting a pauper appeal should express and record very briefly the reasons for granting leave so that the Bench before whom the appeal ultimately comes may have an assurance that the leave was properly given. With respect, we are in entire agreement with this view. When an application is made for leave to appeal in forma pauperis, the applicant is also required to present a memorandum of appeal, and to enable a person to be allowed to appeal as a pauper, the person must be a pauper. In order to ascertain whether the applicant is or is not a pauper, an inquiry into the applicant's pauperism is essential. If the finding is that the applicant is a pauper, the next step is to see whether the requirements of the proviso to R. 1 of O. 44 are fulfilled.
4. It is contended on behalf of the respondent that the Court should first see if the requirements of the proviso to R. 1 are satisfied. This involves the assumption that the applicant is a pauper. It seems to us that the first thing to do is to see if the applicant is a pauper. If he is, the next thing to do is to see if the conditions in the proviso to R. 1 of O. 44 are satisfied. If the applicant is not a pauper, there is no question of compliance with the terms of the proviso. In this case the finding of Lokur, J., is that the applicant is a pauper and upon that footing leave was granted to the appellant to appeal in forma pauperis and the appeal was also admitted. The only infirmity in the order is that no reasons were given while granting the application and admitting the appeal. This does not, however, mean that the order is bad. We think it is extremely unlikely that the provisions of O. 44, R. 1, were not present to the mind of a Judge of the experience of Lokur, J. At the same time, it is, in our opinion desirable, as was pointed out by Sir Lawrence Jenkins in 28 Bom. 451, that the Judge while admitting a pauper appeal Should express and record briefly the real sons on which leave proceeded. In this view of the matter we now proceed to dispose of the appeal upon the merits.
5. On behalf of the appellant three points have been taken, two of which have been faintly argued. The principal point which has been argued on behalf of the appellant is that the respondent is not entitled to proceed against the property mentioned in Schedule B to the plaint because the property in question is different from the property which was the subject-matter of the mortgage, and to understand the contention it is necessary to mention some facts. The deed of mortgage giving rise to the suit was executed on 28th March, 1926. It was a simple mortgage and by the document the defendant mortgaged a house and certain lands situate at four different places for the consideration of Ss. 5000. The mortgagor happened to be a Mahomedan lady and it appears that she was not the absolute owner of the properties which she had mortgaged. In 1933 there was a litigation between the defendant and other co-sharers with respect to their property including this property. In the compromise decree which was made in that suit the property mentioned in Schedule B was allotted to the defendant's share. The decree was passed on 17th February, 1938. The plaintiff commenced his suit on 29th March, 1941, and to the suit the defendant raised two objections which I have mentioned above. In the plaint the plaintiff alleged as follows:
“The property included in the mortgage deed and the changes made in the numbers in the Government records from time to time are shown in Schedule A to the plaint. The particulars of the said properties and the properties which the defendant — Ashabibai — got for her share under the decree in Regular Civil Suit No. 60 of 1933, in the said properties, by right of ownership and which she took in her possession are given in Schedule B to the plaint. The said properties in Schedule B are liable according to law for the payment of the mortgage-debt in suit.”
6. The written statement which the defendant filed and which is Ex. 12 in the suit, contains no fewer than 11 paragraphs, but in none of these is reference made to the contention which is now taken that the plaintiff's claim cannot be met from the properties mentioned in Schedule B. This point not being taken in the written statement was not made the subject-matter of an issue in the trial Court. It is only upon the hearing of this appeal that this point has been taken and reliance has been placed upon the decision of their Lordships of the Privy Council reported in 59 I.A 4052. The suit giving rise to the appeal was to enforce a mortgage of 26th April, 1923, which respondent 3 and his son Sardar Ali had executed in respect of some of the properties in favour of the appellant to secure payment of one lakh of rupees lent and advanced by the appellant, and their Lordships of the Privy Council proceeded to lay down the principle as follows (p. 411):
“Where one of two or more co-sharers mortgages his undivided share in some of the properties held jointly by them, the mortgagee takes the security subject to the right of the other co-sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. If the mortgage, therefore, is followed by a partition, and the mortgage properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution for his undivided share.”
7. In the face of this ruling, the appellant has dearly no case. But it is urged that this decision can be distinguished. We are unable to see how the appellant can with any success do that. The mortgage in that case, as in this case, was executed by the mortgagor and his son conveying some of the properties in favour of the appellant, in the present instance the defendant mortgaged some of the properties belonging to herself and others as if she was a full owner, and with refer, once to almost identical facts their Lordships of the Privy Council held that in the absence of fraud the mortgagee was entitled to proceed against the properties allotted to the mortgagor in substitution of his undivided share. In our opinion the contention has no substance and we therefore reject it.
8. The two other points argued ace one relating to consideration and the other relating to the status of the defendant as an agriculturist. With regard to the question of consideration it is suggested that the mortgage deed was not supported by consideration and what happened was that various items which go to constitute the consideration of the mortgage were supposed to have been advanced on the date of the mortgage and not on the respective dates mentioned in the promissory notes. Beyond mentioning the point learned counsel for the appellant has not made any serious attempt to deal with the point. The learned trial Judge upon the evidence came to a finding that there was consideration for the mortgage and that the same was for a sum of Rs. 5000. In our opinion this contention must also fail.
9. The next and the last point taken is that the defendant should have been held to be an agriculturist.
10. Upon that point also the learned Judge came to the conclusion that the defendant's non-agricultural income was larger than the agricultural income. Nothing is shown in a contrary sense and we therefore accept the conclusion of the trial Judge and reject the contention urged in support of the appeal.
11. For all these reasons the contentions urged on behalf of the appellant must fail. The result is that the appeal fails and must be dismissed with costs. In civil Application no. 593 of 1943 the rule is discharged with costs.
12. The appellant was allowed to prefer the appeal in forma pauperis, and as the appeal fails, the appellant will have to pay to Government the amount of the court-fee upon the claim in appeal, viz. Rs. 10,000 as if she had not been allowed to appeal in fprma pauperis.
13. Appeal dismissed.
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