MUNNOO LALL Vs. LALLA CHOONEE LALL

JUDGEMENT

(1.) THIS appeal has been heard ex parte, and after considering the opening of Mr. Leith, which has been made in a fair and candid manner, it appears that there are concurrent findings of two Courts below upon a question of fact decisive of the case, and decisive of t it against the Appellant.

(2.) THE circumstances are very short. It appears that a man of the name of Reep Bhunjun Singh was in debt, and at the time possessed some considerable estates. The Appellant Munnoo Lall had been his banker and advanced money to him, and, amongst other securities, he held a mortgage of the date of the 9th of October, 1863, from Reep Bhunjun Singh, of Mouzah Shahpore. It was an ordinary mortgage to secure the sum of Rs. 20,000. Subsequently to that mortgage, on the 9th of August, 1864, Reep Bhunjun Singh sold the mouzah to the Respondents, or to those whom the Respondents represent, the bulk of the consideration given for the purchases being the money which was due to the purchasers from Reep Bhunjun Singh, for which they had obtained decrees. Besides the amount of the decrees, a small sum was paid on each of the purchases in cash. Four years after these purchases the Appellant commenced this suit, which is a suit to enforce payment of his mortgage bond against the Respondents, and prayed a sale of the mouzah. The defence set up by the answer, amongst others, was the equitable defence that Munnoo Lall could not enforce his mortgage bond as against these Respondents because at the time of their purchase he had been present when the negotiations for the purchase took place, and in answer to inquiries, had led the purchasers to believe that he had not any lien upon the estate, consequently that he had not the mortgage bond which he sets up in this suit. The defence is made in the answer, as Mr. Leith observed, in not very precise terms, but they say that the purchase was made in consultation with the Plaintiff, and his son, and at that consultation they were led to believe that there was no such lien as the mortgage of 1863.

(3.) UNDER these circumstances their Lordships think that they could not have departed from their ordinary rule of not disturbing concurrent judgments upon a question of fact of two Courts, even if they had felt some doubt upon the finding. But after the discussion of this case, their Lordships are disposed to agree with the findings of the Court below.