TIRKHA, ETC. Vs. DWARKA PARSHAD, ETC.

JUDGEMENT

(1.) THIS second appeal is directed against the concurrent decisions of the Courts below decreeing the Plaintiff's suit.

(2.) PLAINTIFF Dwarka Parshad got the land in dispute on mortgage from Smt. Kasturi, daughter of Jawatri, wife of Kishan Jiwan. The ownership of the land vested in Tirkha and others. Kishan Jiwan held this land as a dholidar. He mortgaged the same to the present Appellants, i.e., Tirkha and others, on 13th May, 1929 for Rs. 160. On his death, his widow Javitri succeeded him. On her death, which took place 5 or 6 years before the suit, she was succeeded by Kasturi, Defendant No. 5, as dholidar. Kasturi effected a further mortgage on the said land in favour of Dwarka Parshad, Plaintiff, for Rs. 1,000 by registered deed, dated 24th February, 1964. On the basis of this mortgage Dwarka Parshad brought a suit for possession of the land against the previous mortgagees Tirkha and others by redemption of the prior mortgage. This suit was contested by the Defendants on the ground that the dholidar had no right to transfer the land which formed the subject -matter of dholi tenure, by mortgage and the same was invalid. The land, therefore, reverted to the original owners and the dholi tenure became extinct. The Defendants also denied that Kasturi was the daughter of Kishan Jiwan.

(3.) THE contention of Mr. Surinder Sarup, learned Counsel for the Defendant -Appellants, is that the transaction of mortgage is void and, therefore non est. The Defendant -Appellants are the original owners of the land and, therefore, the Defendants could impeach the validity of the mortgage and it is immaterial whether they themselves are the mortgagees. The question whether the dholi tenure exists or not is a question between the dholidar or his successors and the proprietors of the village, but so far as the mortgagee is concerned, he gets no rights under the mortgage. This contention appears to be sound in view of the clear pronouncement of Sir Shadi Lal in Sewa Ram v. Udegir, I.L.R. 2 Lah. 312. The learned Chief Justice, after setting out the nature of the tenure, observed: