SOMANATH PRADHAN Vs. SANNO GOVINDO MISRA

JUDGEMENT

(1.) THIS appeal by some of the defendants against the concurrent decision of the court below raises inter alia rather an interesting question of law whether a second suit for redemption would lie. The plaintiff's suit for redemption was decreed by the Courts below and their decree directed the defendants to deliver possession of the suit lands to the plaintiff within three months from the date of the decree. The plaintiff was an assignee from defendant 3, a legal representative of the original mortgagor. Defendants 1 and 2 were the mortgagee and defendants 4 to 14 purchased different parcels of the mortgagee's interest from defendants 1 and 2.

(2.) THE plaintiff commenced a suit for redemption, simpliciter, to redeem a registered usufructuary mortgage, dated 25-9-1909 executed by Dandapani Mirsa, the late grandfather of defendant 3 in favour of the father of defendants 1 and 2, for a sum of Rs. 30/ -. Both the original mortgagor and the mortgagee are now dead. After the death of Dandapani, his son, since dead, and grand on the third defendant, by a registered deed of sale dated 10-8-1928, sold the mortgaged property to the present plaintiff the first and the 2nd defendants who are the sons of the original mortgagee, since deceased, it is admitted, were in possession of the mortgaged security ever since the mortgage was executed. According to the recitals in the mortgage bond, (Ext. 1), the rents and profits of the mortgaged property were to be first applied towards the payment of interest and the surplus towards the principal. The plaintiff's whole case was that the entire mortgage had since been redeemed and there is no further money due. However, if any amount is found by the court to be due, the plaintiff was ready to pay the same. Accordingly the suit for redemption of the mortgage was filed.

(3.) DEFENDANTS 1 and 2 and defendant 11 filed separate written statements. Though the defendants 5 to 7, 9, 10, 13 and 14 adopted the written statement filed by the first defendant, the suit ultimately was contested by defendants 1 and 2 only. They contended, inter alia, that the plaintiff had filed a suit (O. S. 831 of 1928)previously and obtained a preliminary decree for redemption on 9-8-1929. That decree directed that if the plaintiff pays a sum of Rs. 529-9-1 within three months from the date of the decree, he would be allowed to redeem the property, but in case such payment is not made on or before 9-11-1929, the plaintiff shall be debarred from all rights to redeem. The plaintiff in fact did not make any payment within the time allowed. Hence in terms of the said decree his right to redeem is now barred by principles of res judicata. The lands, at the time of the mortgage, were not surveyed and were noted as 21 Varanams, 15 Nautis. But after the survey and settlement, the lands under mortgage were actually found to have an area of only A. 2. 94 cents. Hence, the other lands besides these A. 2. 94 cents belonged exclusively to the defendants. The right to redeem was also challenged on another ground. The plaintiff in the meantime, by means of an oral sale sold away his right of redemption for a sum of Rs. 88/-and put the defendants 1 and 2 in possession thereof. Thus they are in possession of the disputed property in their own rights since this sale in 1930, and their names stood duly recorded in the settlement records of the year 1938. They, being the absolute owners of the disputed properties, have, in the meantime, sold away 2. 20 acres to different defendants and have kept only 74 cents to themselves. Their further case was that the father of these defendants had repaid a sum of Rs. 435-9-1 towards an old mortgage in respect of this property due to one Narayan Das as also towards the Mustajari dues payable to the Zamindar. The other defendants while adopting this written statement, as stated earlier, denied that lot Nos. 1 and 7 of the plaint schedule ever belonged to the plaintiff, and lot No. 3 purchased by the fifth defendant belonged to the first defendant alone. Lot No. 8 according to them was not included within the mortgage security and hence no decree should be passed against these lots. They further contended that the plaintiffs suit for redemption is barred by limitation.