SAILA BALA DEVI Vs. GOURI BALA DEVI

JUDGEMENT

(1.) In this second appeal by the plaintiff the only question for decision is whether the plaintiff is entitled to recover the proportionate share of the mortgage due3 from Gouri-bala, defendant 2 who purchased the 8 annas share of Sushilabala, defendant 1. The facts shortly stated are these.

(2.) C. S. plot No. 689 of Mouza Mohiary, recorded in Khatian No. 1451, originally belonged to one Nritra Kali Devi who mortgaged it to her brother Dina Nath Dalai for Rs. 150 on 19-1-1914. After her death her son Nanda Lala mortgaged the same property for Rs. 200, to one Hari Pada Nath, husband of the plaintiff on 14-5-1923 and redeemed the mortgage of Dinanath. Subsequently to satisfy the debt of Haripada, Nanda Lal again mortgaged the property to the plaintiff Saila Bala for Rs. 275 on 22-7-1936 and redeemed the mortgage of Haripada. Nandalal died in Pous 1346, leaving his widow Sushilabala, alias Surabala, defendant 1 and Panchanan, pro forma defendant 3. Bach of them thus acquired 8 annas share in Plot No. 689. Panchanan on 19-12-1943 executed in favour of the plaintiff a sale-deed (Ex. l) for a consideration of Es. 700 of which only Rs. 100 was paid in cash, the rest having been set off against the dues under the mortgage of the plaintiff. In this sale deed Panchanan represented himself as the sole heir of his father Nandalal. Gouribala purchased Sushila's 8 annas share of the plot on 1-5-1944. So, when the plaintiff Sailabala went to take possession of the entire plot, Gouribala resisted and then the plaintiff instituted a Title Suit against her alone in respect of the whole C. S. plot No. 689. The suit was dismissed in toto in the trial Court but in the appellate Court it was decreed in part to the extent of the 8 annas share of Panchanan, and Sailabala was given joint possession of the plot with Gouribala. The plaintiff then instituted the suit out of which this appeal arises for enforcing 8 annas share of her mortgage as against Sushilabala and Gouribala who are the principal defendants, Panchanan being made a pro forma defendant in the suit. The suit was contested by Gouribala. The learned trial Court dismissed the suit on the finding that the entire mortgage had been discharged by the sale of the plot by Panchanan to Sailabala, so that the only remedy which Sailabala would be entitled to would be damages against Panchanan. The learned Lower appellate Court also took the same view and dismissed the appeal. The only question then for decision in this appeal is whether this view is correct.

(3.) It is contended on behalf of the appellant that although Panchanan purported to convey to Sailabala 16 annas of the plot in question, he was entitled to convey only 8 annas share and Sushilabala obtained effective title only to 8 annas share of that plot as a result of that sale deed, so that what really happened in consequence of the sale deed was that only a half of the mortgage debt stood liquidated and the other half subsisted and it was open to the plaintiff Sailabala to enforce this other half against Sushilabala and her purchaser Gouribala.