GHASIRAM Vs. SHANKARLAL

JUDGEMENT

(1.) This appeal from a judgment of the District Judge of Dhar, which reversed a judgment of the Munsiff, Dhar, raises the question whether the plaintiff- respondents Shankarlal and Ramkishan, who purchased a house in pursuance of a decree for specific performance of an oral contract to sell the house, concluded between them and Bondar and Chhetar, the owners of the house, are bound by certain mortgages created by the owners in favour of the appellant after the contract to sell.

(2.) The material facts are that on 27th December 1927 Bondar and Chheetar entered into an agreement with Shankarlal and Ramkishan for the sale of the house to them for Rs. 3500/-. It was agreed between (he parties that out of this consideration Rs. 1100/- would be paid immediately and the remaining amount of Rs. 2400/- would be paid by the purchaser directly to Nathuji, Bhagirath and Ghasiram who had taken earlier two mortgages of the property, one of them executed by Mulchand the father of Bondar and Cheetar, on 24th November 1913 for Rs. 2000/- and the other executed by Bondar and Cheetar on 23rd December 1918 for Rs. 400/-. After the aforesaid agreement to sell was concluded, proceedings were initiated in the Court of the Munsiff of Dhar by Bondar and Cheetar under the prevailing law in the former Dhar State for registration of a sale-deed in favour of Shankarlal and Ramkishan. These proceedings proved to be abortive as for some reason or another Bondar and Cheetar declined to perform, the contract they had concluded with Shankarlal and Ramkishan. In these proceedings for the registration of a sale-deed in favour of Shankarlal and Ramkishan, the mortgagees Nathuji, Bhagirath and Ghansiram lodged an objection on 18th February 1928 stating that the prospective vendees were not entitled to obtain possession of the properly without redeeming the two mortgages executed by the vendors in their favour in 1913 and 1918. The registration proceedings were, however, dismissed on 19th February 1941. In the meantime on 4th February 1938 Bondar and Cheetar effected another mortgage on the house in favour of Nathuji, Bhagiram and Ghasiram for Rs. 1922-8-0 and on 14th June 1943 Cheetar alone (Bondar having died in the meantime) made yet another mortgage on the house for Rs. 6422-8-0. In 1944 Shankarlal and Ramkishan instituted a suit against Cheetar in the court of the Munsiff of Dhar for specific performance of the contract of sale dated 27th December 1927 and obtained on 21st June 1944 a decree in their favour. The decree directed that Shankarlal and Ramkishan should pay Rs. 2400/- to discharge the mortgages in favour of Ghasiram, Nathuji and Bhagirath and obtain possession of the house and Cheetar should execute and register a sale- deed of the house in favour of Shankarlal and Ramkishan. It must be noted that in that suit Ghasiram had made an application on 3rd January 1944 for being made a party to the suit. The application was opposed by Shankarlal and Ramkishan and was rejected by the Court. After the execution of a sale-deed in their favour by Cheetar, Shankarlal and Ramkishan filed a suit against Cheetar and Ghasiram, out of which this appeal arises, for possession of the house from Ghasiram on payment to him of Rs. 2400/-in respect of the mortgages of 1913 and 1918. At the time of the institution of the suit, Nathuji, Bhagirath and Bondar were dead. Cheetar did not appear and contest the suit and it proceeded ex parte against him. Ghasiram resisted the plaintiffs' claim on various grounds one of them being that the plaintiffs Ramkishan and Shankarlal were not entitled to obtain possession of the property without redeeming in addition to the two mortgages of 1913 and 1918, the other two mortgages of 1938 and 1943. The suit was dismissed by the Munsiff of Dhar. Thereupon Shankarlal and Ramkishan appealed to the Court of the District Judge of Dhar. The learned District Judge gave to the plaintiffs a decree for possession of the property on payment to Ghasiram Rs. 2400/- in respect of the mortgages of 1913 and 1918 besides Rs. 1816/- on account of interest, and expenditure incurred by the mortgagee on the repairs of the house. It is against this decision of the District Judge of Dhar that the mortgagee Ghasiram has filed this appeal.

(3.) These being the relevant facts, the only question that was presented before me for consideration is whether the plaintiffs are under a liability to redeem the mortgages of 1938 and 1943 effected on the property by Bondar and Chitar subsequent to the oral agreement for the sale of the property concluded by them with the plaintiffs and whether the plaintiffs are entitled to possession of the property without redeeming these mortgages.