PRAPHULLACHANDRA Vs. RAJBAI

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by plaintiff Bababhai for enforcement of a mortgage dated 22-2-1946 for a consideration of Rs. 22,000/ -. The mortgage was anomalous. The mortgagor agreed to deliver possession of the property namely the house on block No. 362-63 in Madhavanagar Ujjain to the defendants. The mortgagor took it back on rent of Rs. 137-8-0 P. M. This amount was equal to the monthly interest which the mortgagor agreed to pay at Annas 10 per cent per month. The mortgage-money was agreed to be paid with a year and on his failure to do so the mortgagee was given right to recover the whole amount. There was also a term not to create further encumbrance or to sell it to any other person. Violating the last mentioned term and without the knowledge of the mortgagor defendant No. 1 sold the property to one Chandulal for Rs. 26,000/-under a sale-deed dated 16-6-1946. The purchaser Chandulal then sold it to defendant No. 2 jagannath under a sale-deed dated 22-3-1947 for Rs. 26,500/,-and lastly jagannath in his turn sold the same to defendants No. 3 and 4 Sundarabai and her adopted son Omprakash. The plaintiff received Rs. 4,457/-as rent in respect of the mortgage property which completely satisfied defendant No. 1's liability for rent upto 3-9-1948. On the last mentioned date the plaintiff received Rs. 8,368/- towards the principal. This left a balance of Rs. 13,632/- towards the principal. The plaintiff filed a suit for recovery of arrears of rent for a period from 3-9-1948 to 10-11-1949 amounting to Rs. 1961-10-0 in the Court of City Civil Court Ujjain but that Court instead of decreeing the entire claim decreed only Rs. 1362-10-0 corresponding to interest due upon balance of the principal amount which had remained due from defendant No. 1. The claim for the aforesaid amount was decreed only against defendants 3 and 4 and no decree was granted against defendant No. 1 on the ground that he had no longer any interest in the house. The plaintiff consequently claimed Rs. 13,632/-as principal and Rs. 3090/- as arrears of rent due from 11-11-1949 upto the date of the suit. The plaintiff sought decree against defendant No. 1 under the terms of the mortgage he having undertaken personal obligation to pay the mortgage amount and rent and against defendants 2, 3 and 4 who purchased the property in succession with knowledge of plaintiff's mortgage.

(2.) DEFENDANT No. 1 Laxmansingh admitted the mortgage but contended that subsequent transfers-were with the knowledge of the plaintiff. According to him he had repayed Rs. 12,000/1- towards the principal and not Rs. 8,368/- as alleged by the plaintiff. As regards his liability for rent he asserted that as the rent-note was only for one year, he having paid rent in respect of that period, he was no longer liable for the subsequent period.

(3.) DEFENDANT No. 2 Jagannath admitted purchase of the property by him and its sale to defendants Nos. 3 and 4. According to him although the sale was for Rs. 30,000/- he had received three houses of that value from defendants 3 and 4 and had sold one of those three to an outsider for Rs. 12,000/- and paid the said amount to the plaintiff through Shankarlal Bhargava towards the principal. Oral agreement to accept substituted security viz; the two houses purchased by defendant No. 2 was also pleaded. He expressed his readiness to pay Rs. 2,500/in cash and the rest by instalments and contended that defendants 3 and 4 were not at all liable.