Transfer of Property Act (IV of 1882) - Under Section 90
Jamna Das v Pandit Ram Autar Pande
(Appeal dismissed with costs)
BENCH: Henry Richards, C.J. and Muhammad Rafiq, J.
ISSUE:
Whether a stranger /third party can enforce the performance of the contract between the actual parties to a contract?
FACTS:
- The Appellant was the holder of a mortgage decree against the respondent who had applied for a decree under section 90 of the Transfer of Property Act, 1882
- Respondent Autar Pande was the purchaser of the mortgaged property
- Musammat Lakhpati sold the entire mortgaged property and the mortgagee rights, to the respondent for the sum of Rs. 41,100 leaving Rs. 40,000 with the vendee for payment of the money due to Janma Das.
- The actual contract was between Musammat Lakhpati, owner, having mortgaged his property to the Appellant Jamna Das. However the property was sold to the Respondent with an agreement to pay off the debt of the owner of the property.
APPELLANT’S CONTENTIONS:
- That the respondent was not merely the purchaser of the equity of redemption, but of the whole mortgage debt
- That a part of the purchase money had been left in hands of Respondent in order to pay off the debt
- That a personal decree could therefore be made against him for payment.
RESPONDENT’S CONTENTIONS:
- Counsel for the respondent were not called upon
JUDGMENT:
The action is brought by a mortgagee to enforce against a purchaser of the mortgaged property an undertaking that he entered into with his vendor. The mortgagee has no right to avail himself of that. He was no party to the sale. The purchaser entered into no contract with him, and the purchaser is not personally bound to pay this mortgage debt.
Appeal dismissed with costs.
