HARISH CHANDRA Vs. CHANDRA SHEKHAR

JUDGEMENT

(1.) THIS is a defendants mortgagees' second appeal against the judgment and decree dated 7-8-1971, dismissing the appellant's appeal after confirming the judgment and decree of the trial Court.

(2.) THE following pedigree is undisputed:- Smt. Laxmi Bahu was undisputed owner of the house in dispute. On 10-1-1930 she executed a deed of mortgage in favour of Ram Sumer in respect of the house for Rs. 2,500. Defendants Nos. 1 and 2 are admittedly the successors in respect of all the property of Ram Sumer.

(3.) DEFENDANTS Nos. 3 to 6 did not contest the suit and the case proceeded ex parte against them. Defendants Nos. 1 and 2 died during the pendency of the suit. Defendants Nos. 1 and 2 filed a joint written statement. They resisted the case on the ground that after the death of Laxmi Bahu, the property in dispute devolved on Smt. Kalawati, defendant No. 4 alone and the deed of relinquishment by her executed in favour of the plaintiff and her two brothers defendants Nos. 5 and 6 would not confer any title. It was denied that any deed of relinquishment was executed by Smt. Kalawati, defendant No. 4 in favour of the plaintiff or her brothers defendants Nos. 5 and 6, It was further alleged that the transaction evidenced by the deed of mortgage was in fact a sale and it was given the shape of a usufructuary mortgage in order to defeat a claim of pre-emption or custom of Zari Chaharam. According to the plaintiff, this evidence was barred by Indian Evidence Act. It was further pleaded that the suit was undervalued and the court fee paid was insufficient. It was further alleged that after the death of Devi Charan, all his heirs should have been impleaded. It was further pleaded that the suit had abated against defendant No. 3. It was also alleged that the plaintiff and his co-sharer had relinquished their rights in the mortgaged property in favour of defendants Nos. 1 and 2. Defendants Nos. 1 and 2 further claimed that they had effected improvements.