SAGOREMULL KHAITAN Vs. GAJADHAR MANSINGHKA

JUDGEMENT

(1.) This is an application on the part of the purchaser of premises No 1, Jugmohan Mullick Street, for an order that the sale held by the Registrar on 26 July 1935 be set aside and the money paid by the applicant refunded. There is an alternative prayer that a reference be directed to the Registrar to enquire and report on the title of the premises. On behalf of the respondent to this motion Mr. Mazumdar has stated that he is agreeable to an enquiry as to title, but the applicant preferred to proceed with his application to set aside the sale. The sale was held pursuant to a final mortgage decree, and the petitioner was declared the highest bidder and purchaser for a sum of Rs. 34,500. The petitioner paid the sum of Rs. 8,625 to the Registrar being twenty-five per cent of the purchase money. The petitioner contends that the vendor was unable to give him a good title, and he seeks to have the sale set aside. It appears that the property was purchased in 1887 by one Hanuman Das, a Hindu governed by the Mitakshara School of law. By his will, dated 20 October 1901, Hanuman Das directed that his charities at Nawalgarh and Barua should for ever be continued and the expenses thereof met out of the income of his estate and should form a charge on his estate. The expenses at Barua were stated to be Rs. 750 yearly. The expenses at Nawalgarh were Rs. 400 yearly.

(2.) On 18 February 1916 the executors of Hanuman's will conveyed the estate including the property No. 1, Jugmohan Mullick, Street to Gajadhar, the defendant in this suit, subject to the charge of Rs. 750 yearly for the carrying out of the religious trust to which I have referred. On 7 September 1917 Gajadhar purported to release the property from the charge, and created a charge for the payment of that sum of Rs. 750 on certain other properties at Siliguri. On 13 March 1931 Gajadhar mortgaged No. 1, Jugmohan Mullick Street, in favour of the plaintiff who instituted this suit on his mortgage on 9 February 1933. There was the usual final decree and the sale by the Registrar took place on 25 July 1935. In support of the application Mr. Bose for the petitioner complains that neither the will nor the probate, which, he says, are two of the most material documents, was abstracted. It is true that this was not done, but in the affidavit on behalf of the plaintiff Seary Lal explains that neither the will nor the probate was in the plaintiff's possession, and that they were unable to procure them from the defendants. A copy of the will has now been produced and it is on the record of this application. The material part to which I have referred has been set out in the petition. The second line of argument on behalf of the petitioner is that the action of Gajadhar purporting to release the property from the charge in favour of the charity was illegal and improper.

(3.) It is further contended that even if the shifting of that charge from the properties on which a charge was placed by the testator was in order, the further charge of Rs. 400 on Nawalgarh remained, and this was an incumbrance which should have been mentioned in the notification of sale. Reference is made to Ch. 27, Rule 9 of the Rules and Orders of this Court, Original Side, which states: Where the property or any portion of it is to be sold subject to an incumbrance the nature and the amount of such incumbrance shall, as far as practicable, be also stated.