NANDA LAL ROY Vs. KAZI SYED ABDUL AZIZ

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to recover Rs. 15,000 odd on a mortgage from defendant No. 1 by postponing an alleged mortgage executed by defendant No. 1 in favour of defendant No. 2, on the ground that the defendant No. 2, the original owner of the property, had, by surrendering the title-deeds into the hands of defendant No. 1 and suppressing the mortgage to himself and making it appear that the sale to defendant No. 1 was for a cash consideration of Rs. 32,000, afforded defendant No. 1 opportunity to raise money on the property by second mortgage as unencumbered.

(2.) The defence was that the defendant No. 1 had not really borrowed Rs. 13,000 from the plaintiff and the plaintiff was fully aware of the circumstances under which defendant No. 1 purchased and mortgaged the property in suit. Search having been made in the Registration Office the plaintiff was saddled with notice of defendant No. 2 s mortgage and the possession of defendant No. 2 was also notice to the plaintiff. The defendant No. 1 did not appear, but the Court below passed an ex parte decree against him and dismissed the plaintiff s suit as against defendant No. 2, on the ground that the plaintiff was not deceived by any of the recitals in the deed of sale, that he had constructive notice of the mortgage to defendant No. 2, and that there was no gross negligence on the part of defendant No. 2.

(3.) Against this decision the plaintiff has appealed and the points raised for our consideration are: 1. Whether the defendant s mortgage is a real or fictitious one? 2. Whether the defendant is not estopped against the plaintiff by reason of certain recitals in the conveyance under which defendant No. 2 sold the property to defendant No. 1. 3. Whether defendant No. 2 has not forfeited his priority by reason of his having parted with the title-deeds and having been otherwise guilty of gross negligence so as to enable the defendant No. 1 to raise money on mortgage from the plaintiff on the footing that the property was unencumbered. It appears that the defendant No. 2, one Abdul Aziz an old man of 70, purchased the property which consists of 12 cottahs, 8 chittaks, 10 square feet of land with an old masonry dwelling house upon it, known as 81, Karrya Road, Ballygunge, in the suburbs of Calcutta, but included within the Calcutta Corporation bat not in the original jurisdiction of the High Court, for Rs. 22,000, in the year 1909.