9911796707
TMI Blog1939 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... o Subrati, the mortgagor; defendant No. 4 and defendants Nos. 5 and 6 are alleged to be puisne mortgagees; defendant No. 4A is the widow and executrix of the father of defendant No. 4, who is alleged to have been a puisne mortgagee along with defendant No. 4; defendants Nos. 7, 8 and 9 as the heirs of Hyderali Ismailji Kurwa, the mortgagee and transferor of the deed of transfer dated November 12, 1920, and one of the transferors of the deed of transfer dated March 30, 1931, and defendants Nos. 10, 11 and 12 as the remaining transferors of the latter deed, are joined as persons interested in the claim for rectification of the deeds of transfer. 3. The defences are no mutual mistake, res judicata, merger of the mortgage in the preliminary decree in the former suit, estoppel, and laches. 4. The history of this case begins with an agreement dated November 26, 1915, exhibit (A), between the Nevatia Flour Mills, Ltd., and Sardar Haji Badloo Subrati. The substance of that agreement was that Subrati was to erect a building or buildings on a piece of land described in the schedule to the agreement measuring 4000 square yards or thereabouts and the Nevatia Flour Mills, Ltd., wera to gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that piece of land with the buildings thereon more particularly described in the schedule hereto and delineated on the plan thereof hereto annexed and thereon surrounded by a red bordered line . The schedule is as follows:- All that piece or parcel of Foras land or ground together with the messuage tenement or dwelling house standing thereon situate lying and being at Sankli Street without the Fort of Bombay in the Registration Sub-District of Bombay containing by admeasurement 579.50 square yards or thereabouts be the same more or less and registered in the books of the Collector of Land Revenue under Old Nos. 29, 95, 96 New Nos. 13531, 13602 Old Survey Nos. 283, 284, 294 and New Survey Nos. 1-2-3/3545 or some of them bounded as follows:-that is to say on or towards the East by the proposed Road, of forty feet, on or towards the West by the property of Rustomji Cursetji Gheyara, on or towards the North by the property of Sirdar Haji Badlooi and on or towards the South by the property belonging to Sirdar Haji Badloo which said premises are assessed by the Collector of Municipal Rates and Taxes under E Ward No. and Street No. and which said premises are more particularly delin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 602 Old Survey Nos. 283, 281, 294 and New Survey No. 1-2-3/3545 or some of them and bounded as follows:-that is to say on or towards the East by the proposed Road of forty feet on or towards the West by the property of Rus-tomji Cursetji Gheyara on or towards the North by the property of Sirdar Haji Badloo and on or towards the South also by the property belonging to Sirdar Haji Badloo which said premises are assessed by the Collector of Municipal Rates and Taxes under E Ward No. and Street No. and which said premises are more particularly delineated on the plan thereof hereto annexed and surrounded by a red boundary line. The Ward and Street numbers were left in blank. Mr. Baindurkar said the Ward number 3912/3 and the Street number 99B were given to this plot during the years 1916/1917, but he was unable to give the exact date. He said that the building constructed on this plot, namely plot C, consisted of a ground-floor and two upper floors. He also said that all the buildings on all the six plots consisted of a ground-floor and two upper-floors with, the exception of plot B bearing Ward number 3912/2 and street number 99A, which consisted of a ground-floor and a first floor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding the covenant for renewal. The date of the lease is given in this recital as 1917. This is an obvious mistake for 1916, as is clear from the statement that it had been registered on January 29, 1917. The fact that the registration number is given together with the pages and number of the Volume of Book No. I establishes beyond doubt that the lease referred to in this recital is the lease exhibit (K). It is unnecessary to refer to the two following recitals or to the first covenant, after which the deed continues:- And this indenture also witnesseth that for consideration aforesaid the mortgagor doth hereby assign convey and transfer unto the mortgagee all and singular the piece or parcel of land of ground messuages hereditaments and all other the premises more particularly correctly described in the Schedule hereto. The schedule is as follows:- All that leasehold piece or parcel of Foras land or ground together with the messuage tenement or dwelling house standing thereon situate lying and being at Sankli Street without the Fort of Bombay in the Registration Sub-District of Bombay containing by admeasurement 579.50 square yards or thereabouts be the same more or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants Nos. 5 and 6 gave up this argument, and was content to assume that the draftsman of exhibit (D) must have had before him the lease exhibit (K). He drew attention, however, to the fact that in the schedule to exhibit (D) the Survey numbers mentioned are in some respects different from those mentioned in exhibit (K), and said that this showed that the draftsman of exhibit (D) had before him material in addition to exhibit (K) and the municipal bills. The draftsman could not have got these survey numbers from the schedule to the lease, exhibit (B), because they are not mentioned there. As I am satisfied that he had before him the lease exhibit (K), I think that it is immaterial where he got the survey numbers from. In the schedule to exhibit (K) the area mentioned is 579-50 square yards, while in the schedule to exhibit (B) it is 575 square yards. In the schedule to exhibit (D) the area mentioned is 579-50 square yards. As solicitor for the mortgagee Mr. Patell must have obtained from the mortgagor the only document of title, exhibit (K). He mentioned in exhibit (D) the registration numbers of exhibit (K), and he must have got these from the document itself. Moreover, Ghan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby giving up their priority 'n respect of plot B, among others. It is made subject to the mortgage of October 24, 1918, to which the first schedule relates. In that schedule the Ward and Street numbers of plot B are correctly given as 3912/2 and 99 A. This would appear to have been a deliberate correction. The recitals show that the draftsman had before him a certified copy of exhibit (D), as the registered number is referred to and the schedule thereto followed by the words and also in the first schedule hereunder more particularly written . The recitals also show that the draftsman had before him exhibits (F) and (G). Having all these documents before him he appears deliberately to have corrected the Ward and Street numbers of plot B in the first schedule. In view of this correction it is strange that defendants Nos. 5 and 6 should now contend, as they do, that there was no mistake in the Ward and Street numbers in exhibit (D). 14. On November 10, 1932, the present plaintiff filed suit No. 1742 of 1932. Defendants Nos. 1 to 3 were the same as in the present suit. They did not appear. Defendant No. 4, Framroze Hormusji Sessionwalla, was the father of defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicate lease dated October 17, 1916, exhibit K. This last allegation is not denied in the written statement of defendant No. 6. Paragraph 12 refers to another lease of land admeasuring 575 square yards dated January 29, 1917, exhibit (B), and to the mortgage of March 30, 1917, exhibit (C), to the predecessor-in-title of defendant No. 6. No Ward and Street numbers were mentioned in exhibit (C), but they were mentioned as 3912/3 and 99B in the deed of transfer to defendant No. 6 as appears from paragraph 13. In paragraph 14 the plaintiff says that he does not admit that the property of which defendant No. 6 is the transferee is the same as the property covered by the mortgage of which the plaintiff is the transferee. In the face of all these averments it is clear that this suit was in respect of plot B, and not of plot C. Paragraph 15 carries the matter no further; it is an alternative claim for priority in case the Court should hold that the plaintiff and defendant No. 6 had a mortgage of the same property, which the plaintiff was disputing. Prayer (b) of the plaint asks for a declaration that the properties were different, prayer (c) deals with the alternative claim, and the usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minary mortgage decree. The notice of motion, was dismissed on June 16, 1936. If the decree was to affect property assessed under different numbers, other parties might have been affected; defendants Nos. 5 and 6 to the present suit would have been affected, and they were not parties to the elarlier suit, The Court could certainly not have amended the schedule to the decree unless the mortgage-deed upon which the decree was passed was first rectified. All the documents in suit No. 1742 of 1932 abovementioned were put in by consent as exhibit (O). 16. On July 10, 1936, the present defendants filed suit No. 1176 of 1936 claiming that in the events which had happened they were the first mortgagees of the property plot B. They filed this suit through Messrs. Jhavery Co., who had acted as solicitors for defendants Nos. 5 and 6 on the notice of motion in suit No. 1742 of 1932, and who knew that the plaintiff on that notice of motion was contending that the real Ward and Street numbers of the property mortgaged to him were 3912/2 and 99A. Not only that, they filed this suit claiming to be first mortgagees although their mortgage exhibit (H) was expressly made subject to the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 6 relied upon a deed of rectification exhibit No. (4) dated November 7, 1932, between the transferors and transferee of the deed of mortgage exhibit (I) by which a cadastral survey number in the latter was corrected. He argued that at the time when this deed of rectification was prepared the plaintiff must have looked into all the numbers, including the Ward and Street numbers, and yet he brought suit 1742 of 1932 in respect of Ward and Street numbers which he now says were wrong. But the plaintiff brought that suit three days after this deed of rectification, and he had clearly not discovered the mistake at that time. In his affidavit on the notice of motion he swore that he had discovered the mistake only after the preliminary decree, and this was not denied by the defendants who appeared. There is nothing in this point. 19. Counsel for defendants Nos. 5 and 6 also relied upon the fact, which was proved, that the assessment in respect of plot C was higher than that in respect of plot B, and argued that the mortgagee of exhibit (D) having been given the municipal bills, exhibit No. (5), must have thought that he was getting the more valuable plot. But the fact that these muni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant No. 6 (the present defendant No. 13), and decreed the suit against the other defendants. Kusodhaj Bhukta v. Braja Mohan Bhukta (1915) I.L.R. 43 Cal. 217 was relied upon in support of the argument that the decree in the earlier suit cannot be set aside by a suit. But that was] a suit between the same parties to the earlier suit, and merely decided that a suit does not lie to set aside a decree in a previous suit on the ground that the Judge in passing the decree made a mistake; in my opinion that case does not touch the present case. Several of the defendants to the present suit were not parties to the earlier suit. The plaintiff does not seek to set the decree aside as against the present defendant No. 13, who was made a formal party, no relief being claimed against him. As no relief was claimed against him, I can see no justification whatever for his appearance to defend the suit. In my opinion the plaintiff is entitled upon rectification of the mortgage deed to have the decree set aside as against the other defendants to the earlier suit, seeing that when the deed is rectified the basis upon which the decree was passed as against them is gone. 22. Laches and gross neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property bearing E Ward number 3912/2 and Street number 99A by reason of suit 1742 of 1932 and the notice of motion in that suit. Having regard to Section 31 of the Specific Relief Act counsel for defendants Nos. 5 and 6 candidly informed me, that he did not feel confident about this contention, though he did not wish expressly to abandon it. Counsel for defendant No. 4A persisted in the contention. In my opinion there is no substance in it whatever. 25. It was also contended that the mortgage, exhibit (D), was merged in the decree in the earlier suit and that by reason of that decree the plaintiff was precluded from seeking rectification of the mortgage. But under Order XXXIV, Rule 5, of the Civil Procedure Code, a mortgagor can redeem until confirmation of the sale; there is no merger of the security in the decree: see Ramji v. Pandharinath Ravji (1918) I.L.R. 43 Bom. 334: S. C. 21 Bom. L.R. 56, f.b.. There is nothing in this point. [After dealing with the issues raised in the case and recording findings thereon the judgment concluded.] 26. I pass a decree in favour of the plaintiff in terms of prayers (a) and (b) of the plaint. As regards prayer (c), having ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Master of the Rolls made that order in the exercise of his discretion notwithstanding his view that the defence raised by Spittle was a dishonest defence. It is no doubt true as the learned Master of the Rolls said that as a rule a man must pay for his own blunder. In the case before me, however, it must be remembered that the solicitor, Mr. Patell, acted both for the mortgagor and the mortgagee, and that the mistake which occurred was a mutual mistake. The suit Became necessary because of that mutual mistake. Mr. Daphtary at one stage argued that even as between the plaintiff and defendants Nos. 1 to 3 there ought to be no costs, and that the plaintiff who moved the Court to cure the mistake should bear them himself. It is, however, a matter of discretion, and in my opinion on the facts of the present case the proper order, as between the plaintiff and defendants Nos 1 to 3, is that the costs, which I will presently define, as between the plaintiff and defendants Nos. 1 to 3 should be added on to the mortgage security. Later in his argument Mr. Daphtary very fairly said that he did not dispute that the general costs of the action should be added to the mortgage debt. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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