BAI JAYAGAVRI Vs. PURSHOTAMDAS SUNDERLAL

JUDGEMENT

(1.) In 1885 Pranjivan became the mortgagee of the plaint property. In 1890, the right, title and interest of the mortgagor was purchased by the predecessors of the defendants Nos. 1 and 2. In 1899, Pranjivan died leaving a widow Hariganga and a daughter s daughter, the plaintiff. He also left a will whereby substantially the widow Hariganga was given a life-interest in the property, and the grand-daughter the remainder absolutely. In 1900, the defendant No. 3 who was a confidential clerk of Hariganga purchased from defendants Nos. 1 and 2 the equity of redemption in the mortgage. He says that, on the 5th of April 1900, he paid off the mortgage. The mortgage-deed bears an endorsement that the mortgage is satisfied. But it is found as a fact in both Courts that the endorsement is a sham, that nothing was really paid in satisfaction of the mortgage, and that the mortgage still subsists. No transfer of the property was taken by the 3rd defendant from the representative of the mortgagee, Hariganga. The 3rd defendant, on the 15th of February 1912, transferred the property to the 4th defendant. In 1914, Hariganga died, and this suit is filed by the plaintiff, the remainderman under the mortgagee s will, to recover possession as mortgagee from the 4th defendant, or to recover the amount of the mortgage debt. The 4th defendant pleads that he is a bona fide purchaser for valuable consideration without notice. The learned District Judge has held that this plea is established. We are unable, however, to agree with this conclusion,

(2.) It is stated in Coote on Mortgages, p. 1425 of the 8th Edition, that "where... a mortgagee desires to release his debtor without consideration, he can only effectually do so at law by deed ; for, otherwise, there would be a mere gratuitous promise by the mortgagee to forbear from exercising his rights of action to enforce payment, which, by an elementary rule of law, would not be binding on the releasor." The method of procedure by deed, on the principle that a deed imports consideration, has no application in India. It follows that the endorsement in question amounts merely to a gratuitous promise not binding on the releasor. And that indeed is the conclusion arrived at by the learned Judge himself when he holds that the endorsement was a sham, that nothing was paid in satisfaction of it, and that the mortgage still subsists.

(3.) The appeal to Section 41 of the Transfer of Property Act cannot avail the appellant for the defendant 3 never became the ostensible owner, inasmuch as there was no transfer to him from Hariganga, in whom consequently the title always remained. Moreover, it appears to us doubtful whether the required " consent of the persons interested" can be said to be furnished where the only consent given is that of a Hindu widow, as tenant for life, the remainderman being no party to such consent.