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Padarath Halwai And Others v. Ram Narain Upadhia And Others
Factual and Procedural Background
The consolidated appeals arise from decrees dated 29th March 1909 of the High Court of Judicature at Allahabad, concerning a suit originally filed on 29th November 1904 in the Court of the Subordinate Judge of Jaunpur. The suit sought to enforce payment of Rs. 66,809 by sale of the village Baragaon and other villages, secured under a mortgage dated 25th June 1892. The Subordinate Judge partly decreed and partly dismissed the claim. Both parties appealed to the High Court, which dismissed the defendants' appeal and granted the plaintiffs a decree for their claim.
On initial hearing before this Board, the appellants contended that the mortgage was invalid due to lack of attestation by two witnesses as required by law, a point not raised earlier. The Board remanded the case to the High Court for evidence on attestation, which was taken and returned. The appellants then challenged the reliability of this evidence, arguing it did not prove proper attestation.
The mortgagors were two pardahnashin ladies who executed the mortgage deed in an ante-room with a partially obstructing curtain (chick) between them and the attesting witnesses. The witnesses identified the mortgagors by voice and claimed to have seen them sign, despite not seeing their faces. The court accepted this evidence as proving valid attestation under section 59 of the Transfer of Property Act, 1882. It was undisputed that the deed belonged to the two mortgagors.
The appellants also contended that the plaintiffs had lost their right to enforce payment against Baragaon due to certain prior events involving multiple mortgages and sales of the mortgaged villages.
Historically, the mortgagors had mortgaged villages Arghupur and Baragaon on 8th August 1887 to Sarju Parshad and Ramanand to secure Rs. 12,000. Subsequently, Arghupur was mortgaged twice more to other parties (second mortgagees) in 1892 and 1893. The 25th June 1892 mortgage included Arghupur and Baragaon securing Rs. 32,000, which incorporated sums due under the 1887 mortgage.
In 1896, the second mortgagees sued to recover their dues, making various parties defendants, including the first mortgagees. The Subordinate Judge's 1897 judgment ordered sale of Arghupur if payment was not made, with proceeds applied first to the second mortgagees, then to the first mortgagees, and finally to the second mortgagees under the later mortgage. The judge apparently overlooked the priority rights of the first mortgagees under the 1887 mortgage.
Arghupur was sold in 1897, and sale proceeds were applied first to the second mortgagees, with the balance insufficient to satisfy the first mortgagees fully. Because the proceeds did not cover the second mortgagees' later mortgage dues, they obtained a decree under section 90 of the Transfer of Property Act, 1882, leading to the sale of Baragaon in 1904, which the appellants purchased.
Legal Issues Presented
- Whether the mortgage deed dated 25th June 1892 was duly attested by at least two witnesses as required by section 59 of the Transfer of Property Act, 1882, thereby making it valid and admissible in evidence.
- Whether the appellants are entitled to relief on the ground that the plaintiffs lost their right to enforce payment against Baragaon due to alleged waiver or laches by the first mortgagees in asserting their priority rights.
Arguments of the Parties
Appellants' Arguments
- The mortgage deed was invalid because it was not attested by at least two witnesses as required by law, and the evidence on attestation was unreliable.
- The plaintiffs lost their right to enforce payment against Baragaon because the first mortgagees (Sarju Parshad and Ramanand) either waived their priority rights or were guilty of laches by not insisting on their priority during the sale of Arghupur.
Plaintiffs' Arguments
- The attestation of the mortgage deed was valid despite the mortgagors being pardahnashin ladies and the presence of a curtain, as the attesting witnesses identified the mortgagors by voice and saw them execute the deed.
- The failure of the first mortgagees to assert their priority in the earlier sale does not disentitle them to recover the full amount due, and the appellants who purchased Baragaon acquired the mortgagors' interest subject to the mortgage debt.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Section 59 of the Transfer of Property Act, 1882 | Requirement that a mortgage deed securing more than Rs. 100 must be attested by at least two witnesses. | The court held that despite the mortgagors being pardahnashin and the presence of a curtain, the attesting witnesses had sufficiently identified the mortgagors and saw them execute the deed, satisfying the attestation requirement. |
| Section 90 of the Transfer of Property Act, 1882 | Procedure for enforcing payment and sale of mortgaged property when there are multiple mortgages. | The second mortgagees obtained a decree under this section to sell Baragaon after the sale proceeds of Arghupur did not satisfy their dues, leading to the sale of Baragaon to the appellants. |
Court's Reasoning and Analysis
The court analyzed the attestation of the mortgage deed in light of section 59 of the Transfer of Property Act, 1882. It accepted the testimony of the attesting witnesses who, although unable to see the mortgagors' faces due to cultural restrictions and a curtain, identified them by their voices and observed their execution of the deed. This satisfied the statutory attestation requirement, validating the mortgage deed.
Regarding the appellants' contention that the plaintiffs lost their right to enforce payment due to the first mortgagees' failure to assert priority, the court found the argument unpersuasive. The appellants acquired only the mortgagors' interest in Baragaon upon purchase and had no prior interest. The court noted that although the first mortgagees could have protected their priority by appealing the Subordinate Judge's decree, their failure to do so does not extinguish the plaintiffs' right to recover the full amount. No evidence was shown to justify relief to the appellants on this ground.
Thus, the appeals failed on both major contentions.
Holding and Implications
The consolidated appeals are dismissed.
The direct effect of this decision is that the plaintiffs' decree for payment under the mortgage dated 25th June 1892 is upheld, and the appellants, as purchasers of Baragaon, remain liable for the mortgage debt. The appellants must also pay the costs of the appeals. The opinion does not establish any new precedent beyond affirming established principles regarding attestation and mortgage priorities.
Sir John Edge :
These are consolidated appeals from decrees, dated respectively the 29th of March, 1909, of the High Court of Judicature at Allahabad. The two decrees appealed from were made in appeals in the same suit. The suit was brought in the Court of the Subordinate Judge of Jaunpur on the 29th of November, 1904, to enforce, by sale of the village Baragaon and other villages, the payment of Rs. 66,809 odd, due under a mortgage, dated the 25th of June, 1892. The Subordinate Judge decreed the claim in part, and in part dismissed it. Bach side appealed to the High Court at Allahabad. The High Court dismissed the defendants' appeal, and in the plaintiffs' appeal gave them a decree for their claim.
When these consolidated appeals first came on for hearing before this Board it was contended on behalf of the appellants that the mortgage upon which this suit was brought had not been attested by at least two witnesses, and as the amount secured by it exceeded one hundred rupees the alleged mortgage was ineffective and could not be given in evidence. That point had not been raised in either of the Courts below. Under the circumstances this Board remanded the case to the High Court in order to enable the parties to produce evidence on the question of attestation. Evidence on that subject has been taken and has been returned to this Board. On behalf of the appellants it has now been contended that the evidence which was given on the remand in proof of the attestation was unreliable, and even if accepted as true, did not prove that the two attesting witnesses who gave evidence on remand had seen the mortgagors sign their names to the mortgage.
The mortgagors were two pardahnashin ladies who did not appear before the attesting witnesses, and consequently their faces were not seen by the witnesses. These two attesting witnesses were, however, well acquainted with the voices of the ladies, and their Lordships are satisfied that these two attesting witnesses did identify the mortgagors at the time when the deed was executed. The mortgagors were, on the occasion of the execution of the mortgage deed, brought from the zenana apartments of the house in which they were to an ante-room to execute the deed. In the ante-room the ladies seated themselves on the floor, and between them and these two attesting witnesses there was a chick, which was not lined with cloth, hanging in the doorway. These two attesting witnesses recognised the ladies by their voices, and they say that they saw each lady execute the deed with her own hand, although owing to the chick they were unable to see the face of either of the ladies. On the other side an attempt was made to prove that a tat, through which nothing could be seen, was hanging in the doorway. Their Lordships accept the evidence of these two attesting witnesses as true, and hold it proved that the mortgage deed on the 25th of June, 1892, was duly attested by at least two witnesses within the meaning of section 59 of the Transfer of Property Act, 1882. It is not disputed that the mortgage deed was in fact the deed of the two pardahnashin ladies, Musammat Niamat Bibi and Musammat Kamar-un-nisa Bibi, the mortgagors.
The only other question to be considered in these appeals is the contention on behalf of the appellants that the plaintiffs in the suit have by reason of certain events, which will now be referred to, lost their right to enforce against Baragaon payment of a considerable part of the amount which they have claimed.
On the 8th of August, 1887, Musammat Niamat Bibi and Musammat Kamar-un-nisa, who will be hereafter referred to as the mortgagors, mortgaged the villages Arghupur and Baragaon, to Sarju Parshad and Ramanand to secure Rs. 12,000 and interest thereon. On the 19th of February, 1892, the mortgagors mortgaged Arghupur to Lukshmi Prasad and others to secure Rs. 30,000 and interest thereon. The mortgagees of the 19th of February, 1892, and their representatives-in-title will here after be referred to as the second mortgagees. On the 25th of June, 1892, the mortgagors by their deed of that date mortgaged Arghupur and Baragaon, together with three other villages, to Sarju Parshad and Ramanand to secure Rs. 32,000 and interest thereon. This sum of Rs. 32,000 included a sum of Rs. 18,000 principal and interest then due under the mortgage of the 8th of August, 1887. On the 20th of May, 1893, the mortgagors further mortgaged Arghupur to the second mortgagees to secure Rs. 21,324 and interest thereon. Sarju Parshad is dead; he is represented in this suit by his son, Ram Narain, who is one of the three plaintiffs. The other plaintiffs are Ramanand and his son S. Narain.
On the 14th of December, 1896, the second mortgagees brought a suit in the Court of the Subordinate Judge of Jaunpur upon their mortgages of the 19th of February, 1892, and the 20th of May 1893, to obtain a decree for the principal moneys and interest due under the said mortgages, and they prayed that in default of payment on a date to be fixed by the Court, Arghupur should be sold by auction and the proceeds of the sale should be applied towards the satisfaction of their decree. To that suit the second mortgagees made Musammat Kamar-un-nisa Bibi as one of the mortgagors and as the heiress of Musammat Niamat Bibi, then dead, the other mortgagor, Surja Parshad, Ramanand and one Indar Sen Singh, defendants. Indar Sen Singh was a subsequent mortgagee; he is a defendant to this suit, but is not an appellant. In their plaint the second mortgagees stated that Sarju Parshad, Ramanand and Indar Sen Singh were mortgagees of Arghupur and that they, the then plaintiffs,
"were ready to pay the mortgage money due to any of them who may be prior mortgagees and which they (plaintiffs) may be legally bound to pay."
In their written statement in the suit of 1896, Sarju Parshad and Ramanand distinctly claimed their right as prior mortgagees and said,
"If the plaintiffs be willing to get the hypothecated property sold, after paying in full the prior amount due to these defendants, they have no objection whatever to the plaintiffs' claim."
The then Subordinate Judge of Jaunpur, being obviously in confusion of mind as to the rights of the parties to the suit of 1896, by his judgment of the 19th of January, 1897, decided amongst other things that Arghupur should be sold by auction in the event of the defendants to the suit failing to pay, on or before the 19th of May, 1897, to the plaintiffs in that suit (the second mortgagees) Rs. 49,275-9-0, the principal and interest due under the mortgage of the 19th of February, 1892, and future interest, and that the proceeds of the sale should be applied first in payment of the amount due to the second mortgagees under their mortgage of the 19th of February, 1892, and that the balance, if any, should be
"applied to payment of the sum which may be due to Sarju Parshad and Ramanand on that date with interest. Any surplus left to be applied in payment of the sum due to the plaintiffs under the second document, dated the 20th of May, 1893."The Subordinate Judge apparently overlooked the rights of Sarju Parshad and Ramanand under their prior mortgage of the 8th of August, 1887. In accordance with the judgment a decree was made by the Subordinate Judge. Default having been made in payment on the date fixed a decree absolute for sale of Arghupur was made by the Subordinate Judge of Jaunpur on the 4th of September, 1897. Under the decree of the 4th of September, 1897, Arghupur was sold. The proceeds of the sale were applied first in payment to the second mortgagees of the sum then due to them in respect of their mortgage of the 19th of February, 1892, and the balance of the proceeds of the sale was paid to the first mortgagees; that balance did not satisfy the amount then due to the first mortgages under their mortgage of the 8th of August, 1887. If the proceeds of the sale of Arghupur had been first applied to the payment of the amount then due under the mortgage of the 8th of August, 1887, that mortgage would have been satisfied, and the amount due under the mortgage of the 25th of June, 1892, would have been to that extent reduced. As the proceeds of the sale of Arghupur did not satisfy the amount due to the second mortgagees under their mortgage of the 20th of May, 1893, they obtained a decree under section 90 of the Transfer of Property Act, 1882, and in execution of this decree the village of Baragaon was sold on the 20th of April, 1904, and was purchased by the appellants.
On behalf of the appellants it has been contended before this Board and in the Court below that Baragaon was relieved of all liability in respect of the debt due under the mortgage of the 8th of August, 1887, by reason of the failure of Sarju Parshad and Bamanand to insist on their priority under that mortgage, it being alleged in support of the contention that Sarju Parshad and Ramanand had agreed to waive their priority as mortgagees of Arghupur, or had waived it, of which, if it were material, there is no proof, and that they were guilty of laches in not insisting on that priority. Their Lordships have found it difficult to follow the argument in support of the contention, as the appellants had no interest in Baragaon until they purchased Baragaon on the 20th of April, 1904, and what they then purchased was the interest of the mortgagors in that village.
It is true that had Sarju Parshad and Ramanand appealed against the decree of the Subordinate Judge, they could have had their interests as first mortgagees under the mortgage of 8th of August, 1887, protected, and would, on the sale of Arghupur, have obtained payment of the amount then due under that mortgage. Sarju Parshad and Ramanand did not, by an appeal, insist on their right as prior mortgagees, but the fact that they did not insist on having the amount due under the mortgage of the 8th of August, 1887, satisfied in priority to the claim of the second mortgagees does not disentitle the plaintiffs to recover the full amount of their claim in this suit, and does not entitle the appellants to relief. No other fact which would entitle the appellants to relief has been shown. The appeals fail.
Their Lordships will humbly advise His Majesty that these consolidated appeals should be dismissed.
The appellants must pay the costs.
Appeals dismissed.
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