PRATAP CHAND versus RAM NARAYAN AND ANOTHER.

PRATAP CHAND versus RAM NARAYAN AND ANOTHER.

Where a mortgage is of the entire proprietary share, it includes the proprietary right in the sir land pertaining to that share. If sir land or other lands come into the possession of the mortgagor or his successor while the mortgage is subsisting, such lands become accession to the mortgage under Section 70 of the Transfer of Property Act, entitling the mortgagee to a proportionate share in them. The mortgagee's claim is not barred by O. II, r. 2 of the Code of Civil Procedure despite omission in the plaint, as the suit was for sale of the mortgaged proprietary share, not foreclosure.

Parties
Appellant: Pratap Chand; Respondents: Ram Narayan and Another
Jurisdiction
India
Judgment Date
22 February 1961
Procedural Posture
Civil Appeal / Appeal From Nagpur High Court Judgment and Decree Dated June 28, 1954, in First Appeal No. 107 of 1946, Upon Certificate
Outcome
Appeal dismissed
Legal Topics
Mortgage, Accession to Mortgaged Property, Transfer of Proprietary Rights, Sir Land, Khudkashat Land, Partition, Civil Appeal
Property Law Civil Procedure Mortgage Accession to Mortgaged Property Transfer of Proprietary Rights Sir Land Khudkashat Land Partition +1 more

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Parties

Pratap Chand

Appellant

Ram Narayan and Another

Respondents

Procedural Posture

Civil Appeal / Appeal From Nagpur High Court Judgment and Decree Dated June 28, 1954, in First Appeal No. 107 of 1946, Upon Certificate

Legal Issues

  1. 1 Whether the mortgage included the sir land of Ramchandar
  2. 2 Whether other lands coming into possession of the appellant were accession to the mortgage

Ratio Decidendi

Where a mortgage is of the entire proprietary share, it includes the proprietary right in the sir land pertaining to that share. If sir land or other lands come into the possession of the mortgagor or his successor while the mortgage is subsisting, such lands become accession to the mortgage under Section 70 of the Transfer of Property Act, entitling the mortgagee to a proportionate share in them. The mortgagee's claim is not barred by O. II, r. 2 of the Code of Civil Procedure despite omission in the plaint, as the suit was for sale of the mortgaged proprietary share, not foreclosure.

Court Disposition

Appeal dismissed

Orders

  • Respondents entitled to proportionate shares in sir land, lands recorded nominally in the mother's name, and other lands coming into the possession of the appellant as lambardar, subject to payment of proportionate expenses incurred by the appellant.