RATAN LAL Vs. MUKANDI LAL

JUDGEMENT

(1.) The only question that arises for consideration in the present second appeal is whether the Courts below were right in refusing to extend to the defendant- appellant the benefit of the provisions of Section 78, T.P. Act,. it is provided by that section that where through the fraud, misrepresentation or gross neglect of a prior mortgagee, another person has been induced 1o advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.

(2.) In order to invite the application of this section to a given case it is necessary to prove that the fraud, mis-representation or gross neglect of the prior mortgagee was the proximate cause for the advance of money by the subsequent mortgagee. If the fraud, misrepresentation or gross neglect of the prior mortgagee is not the proximate and primary cause but only one of various contributory factors that led the subsequent mortgagee to advance money, Section 78 can have no application. In the present case the Courts below, while holding that the plaintiffs-respondents were guilty of gross negligence in not ascertaining the exact description of the mortgaged property by a reference to entries in the khewat and in getting the same correctly described in the montgage-deed in their favour, also held that the defendant-appellant was equally guilty of gross negligence in omitting to inspect the title deed of the mortgagor of which he had ample notice, and an inspection of which would have given him notice of the plaintiffs mortgage. On these findings the Courts below held that as the negligence of the defendant-appellant contributed to the loss that now he has to suffer by being postponed to the plaintiffs, the defendant-appellant is not entitled to the benefit of the provisions of Section 78, T.P. Act. It is well established that a party who himself has been negligent cannot burden another with the consequence of his own negligence, or as has been said: that the argument of negligence against negligence, like that of estoppel against estoppel, sets the matter at large.

(3.) In the present case therefore if the finding of the Courts below as regards the contributory negligence of the defendant-appellant is upheld the decrees of the Courts below must be affirmed. The property sought to be sold in enforcement of their mortgage by the plaintiffs belonged to a lady named Mt. Roshni. It was situate in two mahals, viz., mahal Surkh Ahtamali and mahal Surkh Mustahkam. The total area of the share belonging to Mt. Roshni was 36 bighas and 14 biswas and the entire share was entered in khata khewat No. 2. Mt. Roshni gifted the said property to Chunni Singh on 20 March 1922, by means of a registered deed of gift. In the deed of gift by mistake the property was described as being situate in khata khewat No. 1. Chunni Singh mortgaged the property gifted to him to a man called Mutsaddi Lal by means of a deed of simple mortgage dated 18 August 1922. In the mortgage-deed the mistake that had crept in the deed of gift as regards the description of the property was reiterated. In other words the property mortgaged to Mutsaddi Lal was described as property in khata khewat No. 1. The mortgage in suit was executed by Chunni Singh in favour of the plaintiffs on 13th June 1923. In the mortage in suit the property mortaged was again misdescribed as being in khata khewat No. 1. The money due to Mutsaddi Lal on the basis of the mortgage of 1922 was left by the mortgagor with the plaintiffs and the plaintiffs paid that amount to Mutsaddi Lal and redeemed his mortgage.