BRAHM PARKASH versus MANBIR SINGH AND OTHERS

Citation: [1964] 2 S.C.R. 324 · Decided: 14-03-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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324 SUPREME COURT REPORTS [1904] VOL. 
BRAHM PARKASH 
v. 
MANBIR SINGH AND OTHERS 
(B. P. SINHA C. J., J. C. SnAn and 
l\. RA.JAOOPALA AYY.~NGAR .JJ.) 
Jfortyuye-Mars/,,1/liny-1'1ac/"18er also mnr/y11{]e• of other 
properly of mortgagnr-lf di,.ntitl<d fo marahalling-Tran-•ftr 
nf Properly Act, 1882 Cf of l~S:J) •· 5U. 
M5 the owner of properties A, II 
and C created several 
mortgai:es over them. The appellant was one of the mort-
gagees of properties A and ll and :>.{G was one of the 
mortgagees of property C. Snbseqnently, the mortgagor sold 
property l3 to ~[G. One of the mortgagees of propcrtie• A and 
B filed a fi;11it for recovery of the 1noney due on tile mortgage. 
MG claimed that the mortg;ige debt ~hould first be satisfied 
out of property A not sold to hi1n. 
'l'hi~ clairn to rnarshalling 
Wa!I allowed. The appellant r.ontemkd that under .. 56 or the 
1'ran~fcr of Property Act<\ purcha:;cr -..vho \\'a'\ also<\ Juortgagi=e 
in respect of any property of the ntortgaJ{Or \Vas not entitled to 
marshalling an<l that 111arshalling should nut have been alJo,vcd 
in the preseut cC1Se as it \\·as hound to prejudice the appellant. 
Held, that ~rG wa> entitled to marshalling. 
When s. 56 
refer~ to a subseq11ent purch<l.ser it docs not exclude a pur-
chaser v•ho has a mortKagc over so111c other property of the 
nlortgagor not connected \vitl1 the proceedi11gs. 
Further, it 
could not follo\V as a n1atler of la\v that 1narshalling mus.t 
nece!.Sarilv prejudice a s11bscq11e11l inortgagcc. 'l'he question or 
prejudice' i5 purely one of fact and is intimately connected 
with the value of the property ag.dnst which the rnortgagcc is 
directed to proceed in the first i11stcutLC. 
·rhe appellant was 
not r.ntitlcd to the benefit of the last portion of s. 5G as h_e had 
not rai.ed any plea as to the value of the property •howing 
that manhalling would prejudice him. 
Crvn, 
APPELLATE 
.Juinsmcnox : 
Civil 
Appeals Nos. i6 and ii of 1961. 
Appeals from the judgment and decree dated 
May 19, HJ55, of the Punjab High Court in Regular 
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2 S.C.R. 
SUPREME COURT REPORTS 
325 
First Appeals Nos. 28, 12 and 13 of 1948 res-
pectively. 
Gopal Sinyh for R. S. Namlu, for the appellant 
(in C. A. No. 76 of 1961). 
Aohhru Ra1n and Nuunit Lal, for appellant 
No. 1 (in C. A. Nos. 77 and 78 of 1961). 
for 
Bishan Narain and B. P. Maheshwari, 
respondents Nos. 9 and 18 to 20 (in C. A. No• 77 
of 1961). 
. •. ,.~ I 
1963. March 14. The .Judgment of the Court 
was delivered by 
AYYA.NGA.H .].-These three appeals, whioh 
are before us on certificates of fitness granted by the 
High Court of Punjab, arise out of two suits for the 
recovery of amounts due on mortgages executed by 
one Mohinder Singh who was a contractor in Delhi. 
Mohinder Singh is now deceased and is now represen· 
ted in these proceedings by his widow and son. 
Mohinder Singh owned as many as eight properties 
in Delhi and over one or other of these he created 
successively 24 mortgages between September 1943 
and July Hl44 and also executed a sale in respect of 
one item of these properties. 
The contentions 
urged in these appeals arise out of conflicts between 
the rights of some of these mortgagees inter se, 
between some of them and the purchaser of one of 
the properties. It is however unnecessary for the 
purpose of deciding these points to set out the details 
of every one of these several mortgages or their 
history. 
Appeals 77 and 78 may first be considered. 
The facts necessary to appreciate the sole point raised 
by .Mr. Achhru Ram, learned Counsel for the appell-
ant-Jagdish Chand are these ; The property con-
1963 
Bra!t111 Plf.rh1sh 
Vf 
Mcnbir Si111h 
1963 
Brahm 
Parkas~ 
"· 
,\laiir Sintli 
Ayya111ar J. 
326 SUPREME COURT REPORTS [1964) VOL. 
cerned in the two appeals is plot No. 1, l'usa Road 
in Block 34 with a bungalow thereon. 
A mortgage 
for Rs. 10,000.i- was created over this and certain 
other propertie~ (we are, however not concerned with 
these other properties) in favour of one Lajwanti by 
Mohinder Singh by a deed dated October 19, l!l43. 
A few davs later-on November 7, 1943-another 
mortgage was executed in her favour for Rs, 16,000/-
under which the property No. I, Pusa Road was 
given as security. 
Passing over certain intermediate 
transactions not material for the purposes of the 
present appeals, a mortgage was created in favour of 
one Daulatram Narula inter alia on this property on 
January 21, 19•14 to secure a sum of Rs. 60

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