SHEO BALAK Vs. SYED MOJIZ ABBAS

JUDGEMENT

(1.) MUNAW -war Ali 1be sir-holder of plot No. 388 executed a usufructuary mortgage there of on 31st July, 1884, in favour of Smt. Mona the predecessor-in-interest of the appellants before us. In 1944 the succes sors of the original mortgagor instituted an application under Section 12 of the Agriculturists' Relief Act against sons of Ram Narain who represented a half share in the mortgagee's interest. Malik the present appellant No. 4 was not implead-ed as a party with the result that a half share in the mortgaged property was un represented in the suit. The suit was de creed on 1-2-1945 for redemption of half share of the mortgaged property on pay ment of Rs. 24 within six months. The plantiff- mortgagors did not, however, pay this amount.

(2.) ON 26th November, 1947, the mortgagors executed a deed of gift of a share of the plot in dispute in favour of Aley Hasan the father of respondent No. 1, A few days later, on 2nd December, 1947, the mortgagors executed a sale deed in favour of Aley Hasan for the balance share in the mortgaged plot in dispute.

(3.) AGGRIEVED , Mojiz Abbas filed a writ petition in this Court. A learned sin gle Judge held that on its original terms the mortgage was not a self-liqvrda'ing one and since by 1940 when the U. P. Debt Redemption Act came into force, the limitation for its redemption had not expired, the provisions of the Debt Re demption Act became applicable to the mortgage. Under this Act the original usufructuary mortgage acquired the sta tus of a self-liquidating mortgage. In the case of a self-liquidat;ng mortgage the period of limitation for a suit for posses sion accrues after the mortgage money had been paid up. As was evidenced by the decree passed in the suit under Sec tion 12, Agriculturists' Relief Act, the mortgage money had not been fully paid up by 1945 when the suit was decreed because the suit for redemption was de creed on payment of Rs. 24 in respect of half share. Therefore, if could not be said that the right to sue for possession ac crued to the mortgagor even till 1945. Since he has a 60 years period of 1'nv.ta-tion for suing for possession, the right to possession remained intact on the date of vesting on 1st July, 1952. Since the mort gage was subsisting, Section 14 of the Zamindari Abolition Act would apply and the right of the mortgage extinguished. The plot being sir, the representatives-in- interest of the mortgagor were entitled to be recorded as bhumidhars. On this view the order of the Deputy Director was quashed and that of the Settlement Officer was restored. Aggrieved, the erst while mortgagors (sic) have come up in appeal.