GIRJA SHANKAR Vs. JAGANNATH

JUDGEMENT

(1.) One Ram Nath executed a simple mortgage on 8-11-1930 in favour of Jagannath plaintiff. In the mortgage deed a 1/6th share in certain properties was included. The mortgage was for Rs. 700 and the amount was payable after one year. On the date of the mortgage Ram Nath was, however, owner of only a 1/9th share in the mortgage. In 1932 Ram Kumar, nephew of Ram Nath, died and Ram Nath inherited a 1/18th share in the property from Ram Kumar and thus became the owner of a 1/6th share of the property. Thereafter Ram Nath died and on 17-5-1933, the widow of Ram Nath as guardian of her minor sons defendants 1 and 2 executed a mortgage in favour of defendants 3 and 4. The mortgage was of a 1/18th share in the same property. In this mortgage deed no mention was made of the first mortgage. Jagannath, plaintiff, filed a suit on the basis of the mortgage dated 3-11-1930, out of which this appeal has arisen, for sale of the 1/6th share included in his mortgage. Defendants 1 and 2 did not defend the suit, bat defendants 3 and 4 took up the plea that their 1/18 share of the property was not saleable, as Ram Nath was the owner of only a 1/9th share when he executed the mortgage dated 3-11.1930.

(2.) The plaintiff met this plea by alleging that Ram Kumar had died before 1930 and on the date of the mortgage in plaintiff's favour Ram Nath was in fact the owner of the 1/6th share that was mortgaged to him. The trial Court, however, came to the conclusion that Ram Kumar died in 1932 and on the date of the mortgage Ram Nath was the owner of only 1/9th share. The trial Court, therefore, decreed the plaintiff's suit for sale of the 1/9th share which had belonged to Ram Nath.

(3.) On appeal by the plaintiff the lower appellate Court allowed the appeal and held that the whole of the 1/6th share was liable to be sold in satisfaction of the amount due under the first mortgage. The defendants 3 and 4 have filed this second appeal. It is urged on their behalf that the only case set up by the plaintiff being that Ram Nath was the owner of a 1/6th share in the property on the date of the mortgage, and the mortgage was, therefore, good and there being no other alternate case set up, nor there being any issue on the question whether the defendants had any notice of the first mortgage or of the option, the defendants were prejudiced by the plaintiff being allowed to rely on a case which they had never pleaded and on which there was no issue. The issues framed by the trial Court were as follows: