9911796707
TMI Blog1914 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... the first defendant to this suit. In 1904, the mortgagee, Bankubihari Ghose, sued to enforce his security, obtained the usual foreclosure decree, and ultimately, when the decree wan made absolute, became full owner of the property. On the 19th February 1907, Bankubihari Ghose transferred the property to the four persons who are defendants other than the first defendant to this suit. On. the 20th August 1908, the Corporation of Calcutta commenced this action against the five defendants to enforce a charge on the property in their hands in respect of arrears of consolidated rates. These arrears had accrued due during the three years from the 1st April 1903 to the 31st March 1906. 2. The first defendant resisted the claim on the ground that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and comprises Chapters XII to XIX which include sections 147 to 235. Chapter XII treats of rates. Section 147 specifies four different classes of rates, which the Corporation is authorised to impose upon buildings and lands within its jurisdiction. Section 149 lays down that these rates are to be levied as one consolidated rate. Section 171 makes the consolidated rate payable in equal halves by the owner and the occupier. Sections 178 and 186 specify the circumstances under which the entire consolidated rate may be levied from the owner, or from the occupier. We next come to Chapter XVIII, which defines the special procedure for recovery of the consolidated rate. Section 212 lays down that the provisions of the Chapter shall be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the person liable for such rate." The language of this section is perfectly plain, and the intention of the Legislature to make the consolidated rate a first charge upon the premises is obvious. But an earnest endeavour has been made, on behalf of the appellants, to restrict its scope and operation by a reference to Section 223. It has been argued that as the purchaser of the premises is liable for arrears of consolidated rate, which have accrued due before title vested in him, only to the extent of arrears for the year immediately prior to his purchase, Section 228 should be so interpreted as to restrict the charge on the property in his hands, only to arrears for which he is liable, This contention in clearly fallacious, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property ", The distinction between a mortgage and a charge, thus indicated in Section 100, is of a fundamental character, and was explained by this Co art in the case of Royzuddi v. Kali Nath) I. LR 1906). . Cal. 985. Sub-nom Royzuddi v. Kritarathanath ( 4 C. L. J. 219. There is this well marked distinction between the two, that a mortgage does, whereas a charge does not, involve a transfer of an interest in. specific Immovable property; Narayana v. Venkataramana I. L. R(1900). Mad 237. Tancred v. Delagoa Bay Co. (l889) 23 Q. B. D. 239 following Burlinson v. Hall (1884) 12 Q. B. D. 347 . where Day J. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n him; when he transferred his right, title and interest in the property, the transferee acquired the whole interest therein. The owner was not in the position of a mortgagor, who has in him nothing beyond the equity of redemption and can consequently convey to the transferee no larger interest in the property. From this principle, the conclusion is inevitable that the charge cannot be enforced against the property in the hands of a bona fide purchaser for value without notice; in. other words, while a mortgagee can follow the mortgaged property in the hands of a transferee from the mortgagor, a charge can be enforced against a transferee, only if he has taken with notice of the charge : Kishan Lal v. Ganga Ram ( I. L. R.1890) All 28. Royzu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase; still, as a purchaser with notice may shelter himself under the title of the person from whom he purchased, if the latter could successfully raise this defence, we must examine the position of the vendor of the appellants: Sweet v. Southcote (1786) 2 Brown C.C 66. M Queen v. Farquhar (1805) 11 Ves. 467 Barrow's case (1879) 14 Ch. D. 432 Wilkes v. Spooner [1911] 2 K. B. 473. Now, as regards the position of Banku Behari Ghose, the mortgagee who acquired title by foreclosure, he was no doubt not in the position of a private purchaser, and if he had enquired of his mortgagor or the subsequent purchaser of the equity of redemption, neither of them would have been bound to give him any information, such as a vendor is under an oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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