Atul Kristo Mitter vs Mutty Lal Mukerjee and Others

Jenkins, J.—On the 30th September 1893," Ram Coomar Mookerje executed a Bengali instrument, whereby he purported to charge. in favour of the Plaintiff, No. 8, Rajah Kally Kissen''s 2nd Lane in Calcutta to secure Rs. 1,800 with interest, of which lis. 782-9 was advanced at the time, while the rest consisted of a pre-existing debt. The title-deeds relating to the property-- from which Ram Coomar appeared to be absolute owner--were handed over to the Plaintiff,, and were thereafter retained by him. The Bengali instrument was duly registered. In December 1893, Ram Coomar died leaving the Defendants Kally Prossuno and Nogendro Nath his sons and hiers, and in February 1895 in came to the Plaintiff''s knowledge that the property had been the subject of a suit in this Court, and that as the result of a decree passed in it the Defendants 1, 2, 3, 4, and 5 (whom I will in future call the claimants) had acquired an interest, which overrode any right assured, to the Plaintiff. In the end, this suit was brought, by which the Plaintiff seeks to establish his position. Since the institution of the suit Defendants 8 and 9 have been added, and of these two Soshibhusan (sic) who is a mortgagee of the claimants'' interest, has appeared at the hearing. Now the claimants shape their case in this manner : Ram Coomar, it is said, acquired and held the mortgaged house as the property of the joint Hindu family, of which they were members, and in January 1884 the claimants instituted a suit against Ram Coomar to make good this claim. Friends intervened, the suit was compromised on the terms of an agreement, and on this there followed aconsent-decree. It is on this decree that the claimants rely, and it is necessary therefore that I should refer to it. It is in these terms :--

It is ordered with the consent of all the parties by their respective counsel that this suit be and the same is hereby restored. And it is ordered and decreed with the like consent that the Defendant Ram Coomar Mookerjee do subject to the direction hereinafter contained convey to the Plaintiffs and the Defendant Grees Chunder Mookerjee the house and premises No. 8 Kally Kissen''s Street, and the house and premises No. 98 Grey Street in the city of Calcutta, and it is declared with the like consent that the said Defendant Ram Coomar Mookerjee is entitled to hold and enjoy the said house and premises No. 8 Rally Rissen''s Street, aforesaid during the term of his natural life without any let or hindrance from the Plaintiffs or the said Defendant Grees Chunder Mookerjee but subject to his keeping the same in tenantable repair and this he is accordingly ordered and decreed to do. And it is further declared with the like consent that the properties at (sic) in (sic) Hooghly, held by the Plaintiffs and the Defendants or any one or more of them are divisible between the (Plaintiffs and the said Defendants Grees Chunder Mookerjee and Ram Coomar Mookerjee in the proportion of one moiety to the said Defendant Ram Coomar Mookerjee and the other moiety to the other parties, that is, the Plaintiffs and the said Defendant Grees Chunder Mookerjee such division to be made by the parties amicably. And it is further ordered and decreed with the like consent that the parties respectively do bear and pay their own costs of this suit to be taxed by the Taxing Officer of this Court under the heading class 2 ordinary causes. And it is further ordered and decreed with the like consent that except as aforesaid this suit be and the same is hereby dismissed.

This decree has not been registered nor was the conveyance of the mortgaged house (for which the decree provides) executed until the 6th of March 1895, Jong after the Plaintiff''s mortgage. It is, however, contended on the part of the claimants that this is immaterial the decree, it is said, created a title in them, and that having regard to the joint operation of sees. 17 and 50 of the Registration Act the absence of registration in no way assists the Plaintiff.

Now it will be noticed that the whole basis of this argument rests on the assumption that the decree transferred to the claimants the mortgaged property, and it therefore becomes necessary to examine that assumption.

The decree was based on an agreement set out in Exhibit No. 01c in these terms :--

To apply on behalf of the Plaintiffs that the case has been settled on the terms that the Defendant Ram Coomar Mookerjee to convey house No. 8 Rally Rissen''s Street and No. 98 Grey Street, to the Plaintiffs and Defendant Grees Chunder Mookerjee. The former house to be repaired and enjoyed by Ram Coomar M''ookerjee during the term of his natural life without any hindrance from the Plaintiffs and the Defendant Grees Chunder Mookerjee and that the properties in Zillah Hooghly of Haripal held by the Plaintiffs and Defendants or any one or more of them shall be declared divisible between the Plaintiffs and Grees Chunder Mookerjee of the one part and the Defendant Ram Coomar Mookerjee of the other part in equal shares, such division to be made by the parties amicably and that the suit in other respects shall stand dismissed -each party paying his own costs on " scale No. 2.

The decree it will be observed followed the terms of the. agreement, and it will be further seen that, while it declared, totidem verbis, the rights of the parties in the properties ''at Haripal, it simply directs the mortgaged house to be conveyed to the claimants without any declaration of right in their fovour. I merely point to this though I do not think too much stress is to be laid on that alone.

Can it then be said that this decree transferred to the claimants such an interest in the property as would override the Plaintiff''s charge?

That it transferred the property appears to me to be a proposition that cannot be maintained for in that case there could have been no purpose in directing a conveyance, seeing that if the proposition wore true there would then be nothing on which the conveyance could operate. That this is so, is, I think, made clearer by secs.. 261 and 262 of the Code of Civil Procedure. The first of these sections prescribes the machinery for enforcing a decree, which directs the execution of a conveyance, while sec. 262 enacts what the effect of (sic) a conveyance shall be in these

(sic) the execution of a conveyance under (sic) preceding section shall have the same effect as the execution of the conveyance by, the party, ordered to excute the same.

The decree no doubt vested in the claimants the immediate right to have a conveyance of the property and they could have enforced that right by execution at any time.

This, however, does not appear to me to. be equivalent to their having got the property in the house, so that they merely had an inchoate right which it was within their power to complete.

They however took no step for that purpose and the result was this. Ram Coomar was not only in possession of the property and of the title-deeds, but so far as the Register goes, the claimants permitted him to appear as the ostensible owner, and the conclusion that I come to is that the Plaintiff''s title is not overridden by the interest in the claimants.

In coming to this conclusion I have not overlooked the contention that the Plaintiff had notice of the decree or at any rate was negligent but in my opinion it has no foundation. The evidence directed to establish notice has com, pletely failed in its purpose. The plantiff or Promotho Babu who acted for him obtained and examined the title-deeds, J searched the Register, and found that the property had been Conveyed to Ram Coomar absolutely. In addition to that it was represented verbally by Ram Coomer''s son and also by a recital in the mortgage that Ram Coomar was absolutely entitled. I fail therefore to see, that in this country where a universal system of registration prevails that there was any negligence on the Plaintiff''s part.

I now come to consider Soshee Bhusan''s claim. It necessarily follows under the circumstances of this case, that if the Plaintiff is entitled to succeed as against the claimants his title must also prevail against that of Soshee Bhusan who derives interest under them.

In the view I take a valid interest was created in the Plaintiff''s favour by the Bengali mortgage and as it was registered in accordance with the provisions of the Act, it must prevail against the subsequent mortgage in Soshee Bhusan''s favour.

I think this would be so even if it be assumed that Soshee Bhusan took without notice. It is. right, however, to point out that this assumption has a somewhat slender basis on the evidence: for it is proved that search was made on the occasion of Soshee Bhusan''s mortgage by his attorney Ashutosh De yet that gentleman never went into the box to state the result of his search though he was in Court all the time, and it is not without importance in this connection to bear in mind that a search over a period of less than two years would have brought to light the Plaintiff''s mortgage.