GIRJA SINGH Vs. GAYNWANTI DEVI

JUDGEMENT

(1.) This appeal has arisen out of the judgment and decree dated 5-10-1977 and 15-10-1977 respectively passed by the then 1st Additional Subordinate Judge, Hajipur, in Title Appeal No. 203 of 1967 whereby and whereunder the judgment and decree dated 8-8-1967 and 23-8-1967 respectively passed by the then Additional Munsif, Hajipur in Title Suit No. 155 of 1961 (25 of 1966) has been reversed. The suit filed by the plaintiffs-appellants for redemption of mortgage in respect of 1 bigha 1 khatta 4 dhoors of S. P. No. 14 appertaining to khata No. 220 had been decreed by the original Court but such decree has been reversed in dismissal of the suit by the appellate Court.

(2.) As per the case of the plaintiffs-appellants they were the members of a joint family having plaintiff No. 2 being the karta had acquired right, title and interest over the suit property and filed the suit for redemption in respect of 1 bigha 1 khatta 4 dhoors which had been mortgaged by Shambhu Mahto and Bhikhar Mahto in favour of Ram Anugraha Singh ancestor of the defendant-1st set on 22-5-1903 with a further prayer of recovery of possession of the lands, means profit. The geneology of the plaintiffs-appellants runs as follows :Govind Singh, Bhikhu Singh and Palakdhari Singh were three brothers who were members of a joint Hindu family. Bhikhu Singh died issueless in the state of jointness with other two brothers. Then the other brother Govind Singh died leaving behind his widow Batuk Kuer who also died issueless then the third brother Palakdhari died leaving behind his son Bakshish Singh and the plaintiffs are the sons of those Bakshish Singh. According to the plaintiffs, regarding the defendants geneology, it has been pleaded that Tirpit Singh and Udit Singh were brothers and formed a joint Hindu family. Tirpit Singh died leaving behind his sons Harihar Singh and Jugeshwar Singh. Then Jugeshwar died issueless and Udit Singh also died leaving behind his son Ram Anugrah Singh who also died leaving behind his sons, namely, Durga Singh and Suraj Singh. Defendant Nos. 1 to 4 are from the branch of Ram Anugrah Singh while defendant Nos. 5 and 6 are from the branch of Harihar Singh (defendant No. 6) who died during the pendency of the suit.

(3.) The history behind the mortgage on which redemption has been claimed has been elaborated by the plaintiffs in the following manner. Shambhu and Bhikhar were cousin brothers who were forming a joint family and both of them jointly executed the disputed mortgage deed in favour of the ancestors of the defendants-1st party. It was alleged that Bhikhar died in the state of jointness with Shambhu without any issue leaving behind his widow Darbesari. According to the law of inheritance prevailing at that period, Shambhu came in possession of the entire property of the joint family by survivorship. Then Shambhu died leaving behind his widow Andhiya and daughter Atwariya. Andhiya came in possession of the property left by her husband and then she died leaving behind her daughter Atwariya and daughter's son Hari Narain Mahto and Sadhoo Mahto and Kishun Mehto. According to the plaintiffs, Shambhu and Bhikhar had kast land measuring 12 khatha 7 dhoors bearing S. P. No. 162 and 1 bigha 16 Khatha 4 dhoors bearing S.P. No. 14 comprising under khata No. 220 Touzi No. 2706. The deed of mortgage dated 22-5-1903 was executed by both Shambhu and Bhikhar for a sum of Rs. 50/- 4 annas regarding 1 bigha 1 khata 4 dhoors from the southern part of S.P. Nos. 14 and 5 khatas from eastern part of S.P. No. 162 making a total of 1 bigha 6 khata 4 dhoors in favour of Ram Anugrah Singh the predecessor in interest of defendants-Ist set. On the basis of that mortgage deed Ram Anugrah Singh came in possession over the mortgage property as a mortgagee and after his death the same remained in possession of the descendants of Ram Anugrah Singh. It is the further case of the plaintiffs that there was stipulation in the mortgage deed to the effect that the same would be redeemed in the month of Baishak 13-11-fasli. According to the plaintiffs, the defendants Ist and 2nd sets partitioned their lands and that the mortgage land came in possession of the defendants-Ist party alone. On the basis of such partition. Mostt. Andhia the widow of Shambhu executed a sale deed with respect to 1 bigha 16 khata 4 dhoors of the lands of S. P. No. 14 for a sum of Rs. 250/- on 19-9-1934 in favour of Batuk Kuer predecessor in interest of plaintiffs who left Rs. 50/- 4 annas of the said mortgage to be paid by the purchasers. According to the plaintiffs, Mostt. Atwatiya and her sons had accepted and ratified the sale deed by executing a registered Ejatnama. It is the contention of the plaintiffs that they requested the defendants-Ist set many times to accept the mortgage money and handover the possession of the land but they did not pay heed to the same. Then the plaintiffs deposited the amount of mortgage money and the cost of registration amount to Rs. 50/- 4 annas in the Court vide chalan dated 12-4-1958 for initiating a proceeding as contemplated under S. 82/83 of the Transfer of Property Act. A Misc. case No. 44 of 1958 was registered. Notice was served on the heirs of mortgagees on 26-5-1958 for filing the original mortgage bond (Bharna bond) which has been marked as Ext. B in the Court, and to take mortgage money. But in spite of service of notice neither the original Bharna bond was filed nor possession of the mortgage property had been given in favour of the plaintiff and ultimately, vide order dated 12-6-1958 the Misc. case was decided ex parte. As the plaintiffs could not be able to get the mortgage redeemed they had no other alternative but to file this suit for redemption as stated above. According to the plaintiffs, they are the purchasers of the mortgage right and they are entitled to get the mortgage redeemed legally as per provisions of law. It was also mentioned in the suit that the mortgage suit could not be filed earlier as they were entangled in family troubles.