RAJ KUMAR ROY Vs. MRITUNJOY DAS

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff in a suit for redemption. The facts are that on 30-8-1918 the plaintiff's father Annada Charan Roy Mahapatra borrowed money on a mortgage from the defendants father Gaya Prosad Das. The sum borrowed was Rs. 2,500 and carried interest at the rate of 2 per cent per month. Out of this sum, a sum of Rs. 1,600 was paid in satisfaction of the previous loan of the mortgagee and of one Trailokhya Mashani. The balance of Rs. 900 was retained by the mortgagee for payment of a contingent liability in favour of one Kripa Sindhu Paramanik. The property mortgaged consisted of two items of property, (1) three annas share of separate accounts Nos. 1 and 2 in mouzas Nij Menakapore and Uttar Arbala appertaining to touzi No. 2661 of the Midnapore Collectorate and (2) three annas share of a Khudra Niskar known as Rani Patni. These properties are set out Schedule Kha of the plaint. The terms of the mortgage bond which was for a period from 13th Bhadra 1325 B. S. corresponding to 30-8-1918 to the end of the Amli year 1350 were that the mortgagee would get into possession of the mortgaged property and out of the usufruct pay himself a sum of Rs. 250 towards principal and interest and pay revenue and cesses to the tune of Rs. 190 and a sum of Rs. 30 to the mortgagor.

(2.) It is not disputed that the mortgage so created was a usufructuary mortgage. The mortgagor, Annada Charan Mahapatra died in the year 1336 B. S. The mortgagee died in 1340 B. S. It also appears that on property No. 2 there was a previous mortgage in favour of one Hara Prosad Giri. On Hara Prosad's death, his son and successor Prem Chandra Giri obtained a decree on the mortgage and in execution of that decree brought to sale property No. 2 on 9-4-1935. The sale was confirmed on 29-6-1935. The sale certificate is Ex. L (1).

(3.) As regards property No. 1 one Gajendra Narayan Maity obtained a money decree against the plaintiff and his co-sharers on 18-8-1932 and in execution of that decree (Money Ex. case No 68 of 1932) this property was sold and purchased by defendant 1 on 15-3-1933. The sale was confirmed on 18-4-1933. The sale certificate is Ex. E.