(1.) THE unsuccessful plaintiff is the appellant.
(2.) THE case is brief is as following: THE plaintiff filed a suit for recovery of mortgage amount. On 29.7.90 the 1st defendant usufructurily mortgaged the suit property in favour of the plaintiff and her husband, the 2nd defendant for Rs. 5000. Till 5.12.81 the 2nd defendant was cultivating the land, thereafter, her father was looking after the mortgaged property. Since there was divorce between the plaintiff and the 2nd defendant effected by the Panchayatdars, the 2nd defendant was also assigned his part of creditorship to the property in question in favour of the plaintiff. On 1.8.83 the plaintiff called upon the 1st defendant to pay the mortgage amount. However, he refused to make payment and took possession of the property forcibly.
(3.) POINTS: It is admitted that the 1st defendant usufructurily mortgaged the property in favour of the plaintiff and her husband the 2nd defendant for Rs. 5000. There was misunderstanding between the plaintiff and the 2nd defendant and there was also panchayat, in which the 1st defendant was one of the panchayatdars. However, now the 1st defendant has taken a stand that he had paid the entire amount with the 2nd defendant on 7.2.83 and also obtained receipt under Ex.B.1. The learned counsel for the plaintiff stated that the mortgage cannot be divided by the 1st defendant and he ought to have made payment to the mortgages. The 1st defendant knowing fully well that the plaintiff and the 2nd defendant are living separately, has created Ex.B1 only to defeat the right of the plaintiff. The learned counsel for the plaintiff also pointed out that Ex.B1 will not be a valid discharge. Payment to a co-mortgagee will not amount to valid discharge on mortgage and, as such, the 1st defendant should be directed to pay the entire amount and the judgment and decree of the lower appellate court are liable to be set aside.