KAUSHAL SINGH Vs. GHANSHIAM SINGH

JUDGEMENT

(1.) This is a defendants' appeal in a suit brought under Section 60 of the Transfer of Property Act for redemption of a mortgage dated 14-11-1895.

(2.) It was averred that a mortgage was created by Netra Singh and Mst. Dulari in favour of Hans Ram Singh and Hulam Singh for a consideration of Rs. 500/-. It was a mortgage with possession. Plaintiff Ghanshyam Singh claiming to be an adopted son of Netra Singh brought the suit which has given rise to this appeal on the allegation that the mortgage money had been paid off from the usufruct of the property mortgaged and that he was entitled to redemption without payment of any money. The defendants were the representatives in interest of the original mortgagees. They denied that Ghanshyam Singh was the adopted son of Netra Singh and pleaded that the mortgaged property consisted of ex-proprietary tenancy and occupancy tenancy lands; that a mortgage of such land was void in law; that the defendants were in possession as proprietors and not as mortgagees. They further urged that the mortgage money had not been paid out of the usufruct of the mortgaged property.

(3.) It appears that previous to the institution of the present suit the mortgagors had filed an application under Section 12 of the Agriculturists' Relief Act for redemption. That was dismissed, as one of the mortgagors was found not to be an agriculturist. On the pleadings set out above, the trial court held on the evidence before it, that the plaintiff was proved to be the adopted son of Netra Singh; that the property mortgaged being ex-proprietary tenancy and occupancy tenancy lands the mort gage was void in law. It further held that the mortgage money had not been paid up out of the usufruct of the mortgaged property. It held, however, that, in the circumstances of the case, equities should be adjusted between the parties and possession of the defendants being permissive, no question of limitation could arise. It held the plaintiffs entitled to redemption of the mortgage on payment of the mortgage money of Rs. 500/-. It passed a preliminary decree for redemption. It is stated that the mortgage money was deposited by the mortgagor and possession has been obtained by him.