RAGHUNATH SADASHIV THAKUR Vs. DADAJI SHAMRAO THAKUR

JUDGEMENT

(1.) This is a suit of a most peculiar nature. The plaintiff was the mortgagee under a registered mortgage for Rs. 400, dated 19 May 1901, whereby certain lands at Mhapan were mortgaged. The plaintiff filed Suit No. 91 of 1915, and obtained a mortgage-decree, which was made absolute and transferred to the Collector for execution. When the Collector took up properties Nos. 3 and 6 for sale, it was found on inquiry that the area and assessment of property No. 3 was less, and that No. 6 did not belong to the defendants. The plaintiff thereupon made inquiry regarding the rest of the property mortgaged, and discovered that out of the property mortgaged only thikan No. 5 belonged to the defendants. Even that thikan has not been included altogether. The plaintiff accordingly found himself in a very unfortunate position.

(2.) If the facts set out above are correct, the plaintiff had a claim to recover damages in an action for deceit against the mortgagor for mortgaging properties which did not belong to him. Instead of filing such an action, the plaintiff filed the present suit asking for the amendment of the decree in Suit No. 91 of 1915, and that the defendants - should be ordered to substitute other property than that mentioned in the plaint, and that the suit property should be ordered to be sold, and that any balance due should be made recoverable personally from the defendants. Further, the plaintiff also asked that if the Court should be of opinion that no suit was necessary, then the Court should treat this as an application under various sections and rules of the Code, or under any other law that might be applicable. The Judge of the Trial Court was fight in saying that the plaint was framed in such equivocal language and contained so many unnecessary repetitions, that it had been a puzzle to. that Court to find out what relief the plaintiff exactly sought.

(3.) On the evidence on issue No. 5--"Does the plaintiff show that defendants fraudulently misdescribed the property at the time of the mortgage" the Judge said: "As to the 5 issue, the plaintiff clearly states he has no evidence to show that the defendants practised fraud on him. He said that he had inspected the properties and was satisfied that they were good security he did not call for title- deeds because the defendants were his bhaubands. From this it is clear that the defendants did not deceive the plaintiff but that the latter was guilty of gross negligence in not looking after his interests. His plea that he is ignorant is not tenable, for, he is an educated man and knows that proper inquiries have to be made when transactions of this nature have to be entered: into. He has himself purchased other lands and made inquiries into title; his failure to do so in this case does not entitle him to charge the defendants with fraud. But his allegation entirely falls through when he clearly admits that before the execution of the mortgage he was aware that the lands mortgaged did not belong to them. In, the circumstances, I hold that the plaintiff has totally failed to prove fraud by the defendants." But we doubt very much really whether on the pleadings any issue of fraud was relevant.