1935 (8) TMI 23 - HC - Indian Laws

Appeal Dismissed: Court Affirms Right to Sell Newly Constructed Buildings Under Mortgage Decree, Upholds Accession Principle.

Jamini Bala Biswas Versus Bank of Chettinad Ltd.

The appeal was dismissed by the court, affirming the respondent's right to sell the buildings in question under the final mortgage decree. The court ... - Issues:1. Dispute over the description of the property in an application for sale under a final mortgage decree.2. Claim of the respondent to sell buildings as an accession to the mortgaged property.3. Interpretation of the principle of accession to the mortgaged property in the context of the final mortgage decree.Detailed Analysis:1. The appeal involved a dispute arising from an application for sale under a final mortgage decree obtained by the respondent against the appellant and another party. The respondent sought to sell two items of property, one of which was uncontested, while the other item, described as a pucca barrack with attached kitchen and trees, was objected to by the appellant. The appellant argued that the buildings sought to be sold were not part of the original mortgaged property as directed by the final decree.2. The key contention revolved around whether the buildings mentioned in the application for sale were rightfully included as part of the mortgaged property. It was established that the buildings in question were constructed after the original wooden house, which was part of the mortgaged property, had been demolished. However, the respondent claimed entitlement to these new buildings as an accession to the mortgaged property under Section 70 of the Transfer of Property Act, even though they were not part of the original mortgaged property.3. The judgment delved into legal precedents to support the respondent's claim of accession to the mortgaged property. Citing cases such as Bissessur Lall Sahoo v. Luchmessur Singh and Motilal Hirabhai v. Bai Mani, the court emphasized the principle that a mortgagee is entitled to have an accession to the property originally mortgaged sold under a final mortgage decree, even if not explicitly mentioned in the decree. The court applied the principle that in execution proceedings, the substance of the transaction takes precedence over technicalities, and amendments to property descriptions in decrees can be allowed under the inherent powers of the court.In conclusion, the appeal was dismissed, affirming the respondent's right to have the buildings mentioned in the application for sale sold under the final mortgage decree, based on the principle of accession to the mortgaged property. The judgment highlighted the importance of looking at the substance of transactions in execution proceedings and upheld the respondent's claim in line with legal precedents supporting the mortgagee's rights in such situations.