BAIJU SINGH Vs. KANH KUMAR

JUDGEMENT

(1.) One Akber Singh owned a 2 bis was & 10 biswansis' share in Patti Rohan Singh, in village Bhawanipur, district Hardoi, & 4 biswas, 3 biswansis & odd share in Patti Akber Singh in the same village. On 29-5 1905, Akber Singh mortgaged 2 biswas & 10 biswansis of Patti Rohan Singh to Pancham Singh. He delivered possession over 15 plots measuring 22 Bighas 2 biawansis in order to satisfy the interest on the principal sum, namely, Rs. 1700.

(2.) On 25-8-1908, he mortgaged 2 biswas & 10 biswansis out of his share in Patti Akber Singh to the same person for a sum of Bs. 1800, Interest was to run at the rate of 6 per cent per annum & the property was not to be redeemed within ten years. It was further provided that if there was a default in payment of interest the mortgagee would be entitled to obtain possession, & it is agreed, that he did obtain possession in 1915. Other debts also were incurred & then Akber Singh died leaving a widow Mt. Sheo Rani & two sons, Bhudhar Singh & Bhola Singh. On 25-7-1911, Bhudhar Singh, Bhola Singh & their mother Mt. Sheo Rani jointly executed a mortgage deed in favour of Awadh Behari Lal A Chandika Prasad, who were predecessors-in-interest of the respondents, to secure a debt of Rs. 5609. The property mortgaged was the 2 biswas & 10 biswansis' share of Patti Rohan Singh & a 2 biswas' share out of Patti Akbar Singh. Most of the mortgage money was left with the mortgagees for payment to Pancham & others. It has been held--& this point has not been challenged in appeal--that the sums made payable under the two mortgages to Pancham Singh were not paid & the heirs of Pancham consequently continued in possession of those shares.

(3.) When the mortgage of 25-7-1911, was executed possession was delivered of 42 plots measuring altogether 52 Bighas 8 biswas since those were the only plots out of the mortgaged share in Mohal Akber Singh which were free from mortgage at that time.