UTTAM CHANDRA DAW Vs. RAJ KRISHNA DALAL

JUDGEMENT

(1.) The question referred to the Full Bench is "where a mortghgee has, in contravention of Section 99 of the Transfer of Property Act, attached the mortgaged property and brought it to sale and purchased it himself, can the mortgagor or his transferee without first getting the sale set aside successfully maintain a suit for redemption of the property."

(2.) The plaintiff sued for redemption of what was described by the learned District Judge as a usufructuary mortgage bond in respect of 18 bighas of land executed in favour of Uttam Chandra Daw (defendant No. 1) by Sayemi Bibi, Takim Gazi and Tabrez (or Tamraj) Sardar on 6th April 1891. Possession was given to defendant U.C. Daw under the bond, but on the same day the mortgagors executed a kabuliyat in favour of the above-mentioned defendant, whereby they attorned as tenants to him. Subsequently the mortgagors, as tenants, made default in payment of rent and the above mentioned defendant sued Sayema, Takim and Tabrez and obtained a decree. During the course of the hearing before the Full Bench a discission arose as to the nature of the suit and the decree. The learned Vakil for the plaintiffs has supplied us with a translation of the decree. It is headed "Bent decree" and after reciting that the defendants had been given possession upon a stipulation to give half of the crops grown on the lands and half of the fruit of the trees on the land in lieu of interest and reciting that the three defendants bad not given the plaintiff the share of the Aman paddy and that the plaintiff bad brought the suit for Rs. 97 3 annas 4 gandas, being the value at the rate of Rs. 36 per bis of 2 bis 14 aris, plaintiff s half share of 5 bis 8 aris, the entire produce of 12 bighas of land at the rate of 9 aris per bigha, it was thereby ordered and decreed that the suit be decreed upon contest, that the plaintiff do recover from the defendants Rs. 98-14-15 gandas as per account therein set out: the decree directed that the defendants should pay the above amount to the plaintiff within 15 days from the 18th May 1892, failing which the defendants would be ejected from the land. The decree was dated the 25th May 1892. In execution of this decree the above-mentioned defendant, U.C. Daw, purchased the equity of redemption on the 5th December 1892: the sale was confirmed in January 1893, the sale certificate was granted in April 1893 and the defendant took possession in 1895.

(3.) Sayemi, Takim and Tabrez died and any interest they had was inherited by Tabrez s widow, who was also the daughter of Sayemi. Tabrez s widow on the 25th April 1902 sold what purported to be the equity of redemption in respect of the mortgaged land to K.N. Bhattacharji, the father of the defendants Nos. 5 and 6. After the death of K.N. Bhattacharji, viz, on 16th May 1913, the defendants Nos. 5 and 6 sold their interest in the land to the plaintiffs. On the 20th November 1913 the plaintiffs brought this suit in which they claim the right to redeem the mortgage of the defendant U.C. Daw.