SHEOBACHAN PANDEY Vs. MADHO SARAN CHOUBEY

JUDGEMENT

(1.) The plaintiffs are me appellants. The appeal arises out of a suit for redemption of a usufructuary mortgage in which the mortgagee set up a cross-claim. The trial Court decreed the suit with mesne profits and allowed the claim of the defendant in part by passing a separate decree in his favour. The defendant thereupon preferred an appeal and the plaintiffs filed a cross-objection. The Court of appeal below allowed the appeal in part and dismissed the plaintiffs' cross-objection.

(2.) One Dhautal Pandey had three sons, Amrit, Sakhi and Mewa. Amrit died leaving four sons, Mahangu, Chanarman, Gena and Bhagwat. Sakhi died leaving a widow, Mehesha Kuer. The case of the plaintiffs is that Sakhi and Mewa died in a state of jointness as members of a joint Mitakshara family and that the family is still joint. Gena died leaving a son Rambachan, who is plaintiff No. 2, and Bhagwat died leaving a son Sheobachan, who is plaintiff No. 1.

(3.) Mahangu, Gena and Mt. Mahesha Kuer executed a mortgage bond in favour of one Gauri Shanker Chaube, defendant No. 1 (referred to in this judgment as the defendant) on the 3rd February, 1916, for a sum of Rs. 4,606/-, the due date of payment being 30th Jeth, 1325 Fasli (24th June 1918.) Khatas Nos. 63 and 70 of village Manjhauli, having an area 17 B fully set out in Schedule A to the plaint were given in usufructuary mortgage. On the 11th April 1944, plaintiff No. 1, executed three rehan deeds of Rs. 2,000/- each in favour of one Ramrichh Chaubey, giving him in usufructuary mortgage 10 bighas (set out in Schedule C to the plaint) out of the 17 bighas which was in rehan with the defendant, and left with him Rs. 4,606/- to satisly the defendant's mortgage. Rambrichh was impleaded as defendant No. 2, but later on he was transposed to the category of the plaintiffs. He died during the pendency of the suit and on his death his sons were substituted in his place. The case of the plaintiffs is that the money due under the mortgage bond in suits was tendered to the defendant by Rambrichh and on his refusal to accept the money he deposited it in Court under Section 83 of the Transfer of Property Act on the 25th April 1944, and got a notice of the deposit served in him (the defendant). The defendant having refused to withdraw the money the present suit was instituted for redemption claiming mense profits from the date of service of notice of deposit till recovery of possession.