PURSHOTTAM HARI CHOUDHARI Vs. VASANT SHANKAR CHOUDHARI

JUDGEMENT

(1.) THIS is an appeal from an order of the District Judge of Ahmednagar.

(2.) THE plaintiff alleges that he is the purchaser of the equity of redemption of property included in a mortgage dated April 7, 1875, and he alleges that the amount due on the mortgage has been paid off, and he asks for a declaration that the amount has been paid off, and for recovery of possession from the mortgagee. THE trial Court dismissed the suit, partly because it considered that an early mortgage of 1871 ought to have been redeemed, and partly on the ground of merger. THE question of merger arises because the plaintiff, who has purchased the equity of redemption, is also a member of the joint family which is said now to own the mortgage. In appeal the learned District Judge thought that the earlier mortgage of 1871 was discharged by the suit mortgage of 1875, and I see no reason to differ from that finding. He thought that there was no merger, because the plaintiff owned the equity of redemption in his individual capacity, and was interested in the mortgage as a member of the joint family, and he, therefore, allowed the appeal, and directed certain issues to the trial Court.

(3.) I allow the appeal with costs, and dismiss the suit with costs throughout.