BARTI KUER Vs. BRAHMCHARI SINGH

JUDGEMENT

(1.) This appeal by defendants 1 and 2 arises out of a suit for redemption.

(2.) On the 18th of November, 1927, Jatadhari Singh father of the plaintiffs, executed a usufructuary mortgage bond in favour of Bujhawan Singh, husband of defendant No. 3 and father of defendant No. 4, for a sum of Rs. 1,825/- in respect of lands appertaining to entire khata Nos. 46, 77 and 296 and portions of khata Nos. 47 and 78, lying in village Bagoni. According to the stipulation in the mortgage bond, the rent of the holdings had to be paid by the mortgagee for the lands given in the usufructuary mortgage and by the mortgagor for the lands which were outside the mortgage and were in possession of the mortgagor. Thus the mortgagor had to pay rent for a portion of the holdings bearing khata Nos. 47 and 78, and the mortgagee had to pay entire rent for the holding bearing khata Nos. 46, 77 and 296 and a portion of the rent for the holding bearing khata Nos. 47 and 78. According to the finding of the lower appellate court, the mortgagee had to pay a sum of Rs. 66/- as rent and the mortgagor a sum of Rs. 33/- for these two khatas per year. Both the courts below have found that both the mortgagor and the mortgagee defaulted in payment of the rent of these two khatas, as a result of which these two holdings, khata Nos. 47 and 78 were sold in execution of decrees for rent and were purchased by the mortgagee in the benami name of his relation Surajnath Singh, husband of defendant No. 1 and father of defendant No. 2. The case of the plaintiffs is that, in spite of the auction sale, their right of redemption subsisted and they tendered the mortgage money but the defendants refused to accept the same. Hence, they instituted the suit for redemption. Defendants 5 and 6 were made parties to the suit as being subsequent purchasers of some of the lands appertaining to khata No. 78 from Surajnath Singh.

(3.) The suit was mainly contested by defendants 1 and 2 who pleaded, inter alia, that since the sale of the two holdings was held due to the default of the plaintiffs themselves, their right of redemption was lost so far as the lands appertaining to khata Nos. 47 and 78 were concerned. Defendants 3 and 4, the heirs of the mortgagee, filed a written statement supporting the defence of defendants 1 and 2, but with respect to the lands appertaining to other khatas, namely, khata Nos. 46, 77 and 296, they admitted that the plaintiffs were entitled to get a decree for redemption.