JANARDHAN BHAGWAN DASS Vs. SHAM LAL NAND LAL

JUDGEMENT

(1.) THE relationship between the parties to the present case is clear from the pedigree -table given below. Gobind Ram ____________________________________|______________________________________ | | | | Lal Chand Bhagwan Das Naman Beli | | | | | Janardhan (Defendant No. 1) | Amritsaria (Default No. 2) | | _______|__________ ___________|__________ | | | | Nand Lal Mukand Lal Basanta Jagan Nath=Mt. Achhri, | (Died sonless) (Defendant No. 3) (Defendant No. 4) |________________________________________________ | | Sham Lal (Plaintiff No. 1) Salig Ram (Plaintiff No. 2).

(2.) THE parties owned considerable landed property, some of which was ancestral and the other non -ancestral. In 1902 Lal Chand, Bhagwan Das and Beli mortgaged 50 kanals and 11 marlas of land which Kalu Mal and others with possession for a sum of Rs. 2,000/ -. In 1904 Lal Chand, Bhag -wan Das, Beli and the sons of Naman made a simple mortgage of another 88 kanals and 15 marlas of land for a sum of Rs. 2,000/ - in favour of the same mortgagees. In 1906 the second mortgage was also converted into a usufructuary mortgage with the result that the mortgagees came into possession of the entire land covered by both the mortgages and measuring 139 kanals and 6 marlas. From 1914 to 1932, fifteen additional charges were created on the aforesaid land by documents, Exhibits D. 3 to D. 17, and the total amount covered by the aforesaid fifteen additional charges came up to Rs. 11,183/ -. The mortgagors made an application to the Collector for redemption of the mortgages under the Redemption of Mortgages (Punjab) Act, and for reasons with which we are not now concerned, the said application was dismissed. In the year 1947 a suit for redemption was filed by all the four branches of Gobind Ram and on the 16th July 1948, a preliminary decree was passed for redemption on payment of Rs. 25,339/11/3 on or before the 14th of January, 1949. Janardhan, defendant No. 1, alone paid the entire amount by depositing Rs. 10,000/ - on the 14th of January, 1949, and the balance on the 24th of January, 1949. On the 11th of March, 1949, a final decree for redemption was passed in favour of the mortgagors. In execution of the decree Janardban, defendant No. 1, got the possession of the entire land. Sham Lal and Salig Ram, plaintiffs in the present case, then brought an application for redemption of their share of the mortgaged property but the same was dismissed by the Collector for reasons with which we are not again concerned in the present case. The present suit was brought by Sham Lal and Salig Ram on the 18th of January, 1951, for redemption of their one -fourth share in land described in para (alif) of the heading of the plaint and one -third share of land described in para, (be) of the heading of the plaint. The plaintiffs alleged that they were entitled to the redemption of their aforesaid shares on payment of Rs. 5,879/2/8, i.e., the mortgage money of their share. Janardhan contested the suit on the grounds that on payment of the entire mortgage money found due under the preliminary decree he had been Kubrogated to the rights of the mortgagees, that qua his own share he had become owner of the same, that qua the rest three -fourths share he was the mortgagee and was as such entitled to all the rights of the original mortgagees in respect of redemption etc., and that the plaintiffs could not redeem only their share and were bound to redeem the whole. He also pleaded that he had incurred Rs. 800/ -as costs of the previous litigation and the plaintiffs could not redeem till they paid the same or at leasttheir proportionate share of the same. He further pleaded that he was entitled to the interest as due on the original mortgages. He took variousother pleas also which are evident from the following nine issues framed by the trial Court - (1) Whether the plaintiffs are not entitled to the benefit of the redemption decree and what is its effect? (2) Whether at the time of redemption it was agreed that every co -mortgagor would be entitled to redeem on payment of his share? (3) If issue No. 2 is not proved, whether the plaintiffs are legally entitled to redeem their share on payment of the amount due from them? (4) On payment of what mortgage amount arethe plaintiffs entitled to redeem their share? (5) Whether the costs of the previous suit wereborne by defendant No. 1 alone and he is entitled to the payment of the same to the extent to the plaintiffs' share? If so how much? (6) Whether defendant No. 1 is entitled to claim interest on the further charges? If so, how much interest is payable to the plaintiffs? (7) Whether the plaintiffs are estopped fromsuing? (8) Whether defendant No. 1 at the time of redemption admitted that the plaintiffs are entitled to redeem their share on payment of Rs. 5,879/2/8and cannot now object that they cannot do so? (9) Relief.

(3.) MR . F. C. Mital, learned counsel for the appellant has urged only the following three points: (1) that the plaintiffs were not entitled to redeem their share only and that they were bound to bring a suit for the redemption of the entire mortgaged property, (2) that the finding of the trial Court with regard to the costs of the previous litigation was erroneous and that it should have been held that the entire costs were incurred by defendant No. 1, and (3) that defendant No. 1 was entitled to interest as provided in the original mortgages.