RAM PYARI DEVI Vs. NAZIMAL HAQUE

JUDGEMENT

(1.) The plaintiffs have filed this Second Appeal against the judgment and decree dated 12.03.1987 passed by Sri Ramesh Chandra Srivastava, the learned 3 rd Additional District Judge, Siwan in Title Appeal No.32 of 1978 whereby the Lower Appellate Court allowed the appeal and thereby reversed the judgment and decree dated 17.01.1978 passed by Sri Jagdish Kumar Sinha, 3 rd Additional Munsif, Siwan in Title Suit No.62 of 1966/139 of 1976.

(2.) The plaintiffs-appellants filed the aforesaid suit for redemption of the Jarpesgi deed dated 23.07.1926 for a consideration of Rs.100 in respect of 1 bigha 2 katthas and 6 dhurs of land on the ground that plaintiff's ancestor, Lila Singh had 2 sons namely Khelawan Singh and Charitar Singh. Charitar Singh died issueless in state of jointness with Khelawan Singh so, the joint family properties came in possession of Khelawan Singh. Charitar Singh during his lifetime was the karta of the family. Khelawan Singh died leaving behind the plaintiff as only son. During the lifetime, Charitar Singh has executed a Jarpesgi deed on 23.07.1926 for a sum of Rs.100 in favour of defendants. Since then, the defendants are Jarpesgidar. Accordingly, the plaintiff is entitled to redeem the mortgage. The plaintiff tendered the money to the original defendant to redeem but the defendants refused. Hence, the suit was filed.

(3.) According to the defendant's case, the Jarpesgi has now extinguished. Charitar Singh executed it as owner of the property as he was separate from his brother, Khelawan Singh. In the partition between two brothers, the properties of Pokhraira were allotted in the share of Khelawan whereas property of Ukhain fell in the share of Charitar Singh. After separation, Charitar Singh executed the mortgage in question and he died in the state of separation and not in the state of jointness with Khelawan. After execution of the mortgage, Charitar Singh took the mortgaged land on the same date on annual rent of Rs.26 and executed a deed of Kabuliyat. The said Kabuliyat was separate transaction. Charitar Singh did not pay the rental which fell in arrears for which the defendants filed Suit No.1408 of 1930 for realization of arrears of rent which was decreed in their favour to the knowledge of Charitar Singh and these defendants purchased the mortgaged land in court auction and obtained delivery of possession as such they came in possession of the mortgaged land by virtue of auction purchase. Therefore, the mortgage has now extinguished.