SUBHASH MAHADEVASA HABIB versus NEMASA AMBASA DHARMADAS (D) BY LRS. AND ORS.

Citation: [2007] 4 S.C.R. 150 · Decided: 19-03-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
SUBHASH MAHADEV ASA HABIB 
v. 
NEMASA AMBASA DHARMADAS (D) BY LRS. AND ORS. 
MARCH 19, 2007 
B 
[S.B.SINHA AND P.K. BALASUBRAMANYAN, JJ.] 
Code of Civil Procedure, 1908: Sections JI, 15, 20, 21 and 21 A. 
C 
Res judicata-lnherent jurisdiction and territorial jurisdiction-Lack 
of-Distinction between-Place of suing-Suit for redemption-Three items 
of property were allotted to one 'CB' in partition-He along with his two 
minor sons executed a mortgage in respect of all the three items in favour 
of one 'D'-Subsequently 'CB' acting for himself and as the guardian of his 
minor sons, executed a simple mortgage in respect of the properties to one 
D 'H'-Thereafter, 'CB', on his own, sold the properties, rather, the equity of 
redemption, to the appellant-The wife and sons of 'CB' filed a suit arraying 
· the appellant and 'CB' as defendants Nos. 1 and 2 respectively for a 
declaration that the sale deed executed by 'CB' in favour of the appellant 
was bogus and not binding on them and, in the alternative, for a declaration 
E that the sale deed did not affect their shares in the properties and was not 
binding on them-The trial court found that the plaintiffs had not proved 
that the sale deed executed by 'CB' was not binding on them and, therefore, 
upheld the whole title conveyed to the appellant-'CB' also flied a suit 
challenging the sale in favour of the appellant-During the pendency of the 
appeal, 'CB', his wife and his sons then purported to sell their rights in the 
F properties to defendant No. 6 and asked him to get himself impleaded in the 
appeal or in the suit-The appeal was dismissed and, thus, the decree 
became final as against the wife and sons of 'CB'-The trial court, while 
dismissing the suit filed by 'CB', held that the trial court which disniissed the 
earlier suit had no pecuniary jurisdiction to entertain that suit and, therefore, 
G the decree in that earlier suit was one without jurisdiction-The first and 
second appeals were also dismissed-Thereafter, the appellant flied two suits 
for redemption of the mortgage in favour of 'D'-The trial court found that 
the properties were the separate properties of 'CB' and, therefore, upheld the 
sale to the appellant and held that the appellant was entitled to redeem the 
mortgage-Defendant No. 1, the mortgagee, and defendant No. 6 flied appeals 
H 
150 
SUBHASH MAHADEVASA HABIB v. NEMASA AMBASA DHARMADAS (D) BY LRS. 
151 
before the lower appellate court-The lower appellate court partly allowed A 
the appeal and held that 'CB' had only I/4th share in the properties and his 
assignment to the appellant was limited only to I/4th share and accordingly 
modified the decree of the trialcourt-The High Court dismissed the second 
appeals-Correctness of-Held: Finding in the second suit that the decree 
in the first suit could be ignored or the effect of it swept under the carpet 
because the court which passed that decree lacked pecuniary jurisdiction 
was clearly unsustainable in law-Defendant No. 6, as assignee, had no 
interest in the properties sought to be redeemed and could not put forward 
B 
any valid defence to the suit for redemption filed by the appellant-The 
decree passed in the suit filed by the wife and sons of 'CB' would bar 
defendant No. 6 from questioning the right of the appellant under the C 
assignment in his favour-High Court judgment set aside. 
Words and Phrases: 
"Place of suing"-Meaning of-Jn the context of Section 21A of the 
Code of Civil Procedure, 1908. 
D 
In a partition between three brothers, three items of property were 
allotted to one 'CB', the original defendant No. 2. He along with his two minor 
sons, who were defendant Nos. 3 and 4, executed a mortgage in respect ofaJI 
the three items in favour of one 'D', defendant No. 1 iit the suit. Subsequently, 
defendant No. 2, acting for himself and as the guardian of his minor sons, E 
executed a simple mortgage in respect of the properties to one 'H'. Thereafter, 
defendant No. 2, on his own, sold the properties, rather, the equity of 
redemption, to the appellant. 
The wife and sons of defendant No. 2 filed a suit arraying the appellant 
and defendant No. 2 as defendants Nos. 1 and 2 respectively for a declaration F 
that the sale deed executed by defendant No. 2 in favour of the appellant was 
bogus and not binding on them and, in the alternative, for a declaration that 
· the sale deed did not affect their shares in the properties and was not binding 
on them. 
The appella

Excerpt shown. Read the full judgment & AI analysis in Lexace.