L TULSI RAM Vs. MAIKU LAL

JUDGEMENT

(1.) This appeal arises out of a suit for sale on the basis of a mortgage. The mort-gage in question (Ex. 1) was executed on 13-1-1930, by Lachhman Prasad and Tulsi Ram in favour of Lalta Prasad and Manni Lal for Rs. 18,000 at 11 annas per cent. per mensem interest. The property covered by the mortgage consisted of five items (vide list A attached to the plaint). Item 1 consists of a shop in Deorhi Agha Mir, Lucknow. Item 2 is a double storeyed house in muhalla Astabal Yahiaganj. Ahata Janashinan, Thana Chauk/Lucknow. Item 3 is a three storeyed house in Finas waligali, Lucknow. Item 4 consists of four shops with plots Nos. 32 and 95 situate at Canning Street, Lucknow, and item 5 is one anna 9 pies 6 3/4 karant zamindari share in muhalla Ismailganj, pargana tahsil and district Lucknow. Of these items 3 and 4 were admittedly redeemed and are no longer the subject-matter of controversy. The only items with which we are concerned are Items 1, 2 and 5. Exhibit 12 is the sale deed dated 20-11-1950 executed by the mortgagors in favour of defendants 3 and 4 in respect of the residential house mentioned in item 2 for a sum of Rs. 5000. Rs. 1500 were made dehanid by the vendees in favour of the mortgagees with the direction that on payment of the dehanid the property sold was to be exempted from the mortgage. Exhibit 13 is the sale dated 22-11-1930 made by the mortgagors in favour of the same vendees for Rs. 4875 in respect of the shop in Deorhi Agha Mir (item 1) to the extent of twelve annas. Rs. 750 were made dehanid to be paid by the vendees to the mortgagees. Exhibit 14 is another sale deed of the same date in respect of the remaining four annas share of item 1 in favour of Baijnath for Rs. 1625. Rs. 250 were made dehanid under this deed.

(2.) The suit was brought by the mortgagees or recovery of. Rs. 18,000 with future interest and costs against the mortgagors by sale of the aforesaid property. Besides the mortgagors, defendants 3 to 6 were impleaded as representatives of the purchaser of items 1 and 2 of List A from them. Lachhman Prasad and Lalta Prasad died during the pendency of the appeal and were substituted by their legal representatives.

(3.) There were various pleas raised in the suit but the main defences now surviving for decision are that there was an agreement between the parties to the mortgage after its execution that the mortgagors shall sell a portion of the mortgaged property leaving an agreed amount of the sale consideration to be paid to the mortgagees who will thereupon release the property Bold from the mortgage on receiving that amount. In pursuance of this agreement, the mortgagors sold items 1 and 2 with the permission of the mortgagees to defendants 3 to 8 making Rs. 2500 payable by them to the mortgagees. The mortgagees did not accept the amount offered to them by the vendees and the mortgagees are, therefore, not entitled to get any interest upon it from the date of the execution of the sale deed. It is also pleaded that the mortgagees are creditors and not having furnished statements of account as required by the U. P. Agriculturists' Relief Act, they are not entitled to get costs and interest.