| Citation(s) |
|---|
| 1967 SLG 5476 = 1967 SLD 5476 = 1967 PLD 243 |
Dacca High Court
Second Appeals Nos. 901 and 902 of 1964, decided on 2nd June 1966.
Presented By: Before
T. Ali with A. W. Chowdhury and Ranadhir Sen for Appellants. Syed Amjad Hossain with Syed Muhammad Ali for
Respondents.
Second Appeals Nos. 901 and 902 of 1964, decided on 2nd June 1966.
Presented By: Before
T. Ali with A. W. Chowdhury and Ranadhir Sen for Appellants. Syed Amjad Hossain with Syed Muhammad Ali for
Respondents.
NABIN CHANDRA MORAL AND OTHERS--Appellants
VERSUS
LALIT MOHAN DAS AND ANOTHER-Respondents
Law: Transfer of Property Act (IV of 1882)
Section: 58(c),58,91
Law: Civil Procedure Code (V of 1908)
Section: 1,9
Transfer of Property Act (IV of 1882), S. 58(c)-Pro visions applicable only to mortgage by conditional sale or to mortgage to similar nature-Not applicable to sale or mortgage of any other kind. Transfer of Property Act (IV of 1882), S. 58-Mortgage Mortgagor, during subsistence of mortgage, cannot transfer mortgaged properties or portion thereof without leave and permission of mortgagee-Such transfer, however, voidoble and not void ab initio-Transaction, unless avoided, would be treated valid for various purposes. Transfer of Property Act (IV of 1882), Ss. 58 & 91-- Mortgage-Redemption-Any person interested in equity of redemption, entitled to redeem mortgaged property-Property transferred, during subsistence of mortgage, to third party by mortgagor-Transfer, though not legal, is voidable and not void-- Such transferee can redeem mortgage as long as transfer made to him is not avoided-Tender of mortgage money by such transferee Valid-Suit for redemption by mortgagor, in such circumstances, competent Pearce v. Morris (1869) 5 C A. 227 ref. Civil Procedure Code (V of 1908), O. XXXIV, r. 1 & O. 1, r. 9-Provisions of O. XXXIV, r. 1 subject to other provisions of Code-Provisions of O. 1, r. 9 applicable even to mortgage suit and prevails against O. XXXIV, r. I-Suit for redemption-- Mere failure to bring on record one of persons having equity of redemption-Does not necessitate dismissal of suit-Transfer of Property Act (IV of 1882), Ss. 58, 60 & 91. Yadali v. Benoy Kumar 54 C W N (2) D R 280; Mst. Waleyarunnissa Begum v. Mst. Chalakhi A I R 1931 Pat. 164 and Muhammad Yunus v. Champamani Bibi A I R 1939 Pat. 49 ref. Balkishen Das v. W. F. Lagge I L R 22 All. 149 held not applicable. Dates of hearing : 10th and 12th May and 2nd Tune 1966. JUDGMENT These appeals by the plaintiffs arise out of the following circumstances: Plaintiffs instituted two suits for redemption of two mortgages and, in the alternative, for specific performance of contracts entered into between the parties. The said two suits were Title Suits Nos. 46 and 47, of 1942. In respect of Title Suit No. 46 of 1942 a patta was…