BHUNESHWARI DEVI Vs. SHEOGOVIND LALL MISSIR

JUDGEMENT

(1.) In a suit to enforce a simple mortgage dated the 4th January, 1926, the plaintiff-respondents obtained a preliminary decree on the 7th August, 1935, followed by a final decree passed on the 27th October, 1938, which provided payment of the decretal amount in instalments, and it was stipulated that in the event of default of payment of any one instalment, the amount remaining outstanding would fall due and the mortgagee decree-holder will be entitled to realise that amount by sale of the mortgaged property. The final decree had not been satisfied in full even by March, 1954. The property mortgaged constituted an estate. The liability for payment of the revenue and cess for that estate lay on the mortgagors. They defaulted in payment of the revenue and cess. Accordingly, the plaintiff paid revenue and cess for the kist January 1953, March, 1953, June 1953, September, 1953, January 1954 and March 1954, with the result that by March 1934 he had paid in all Rs. 938-14-9 on account of revenue and cess. On the 2nd March, 1956, the plaintiff-respondents commenced the present action for recovery from the appellants-mortgagors Rs. 938-14-9 paid by them on account of revenue and cess and Rs. 288-8-0 by way of interest, in all Rs. 1227-6-9.

(2.) The defence of the appellants was two-fold; first, that this payment was gratuitous and voluntary, and it is, therefore, not recoverable from them, and the second that the mortgaged property had vested in the State of Bihar, and, therefore, the present suit was barred under Section 4 of the land Reforms Act.

(3.) Both the Courts negatived the defence, and granted the plaintiff a decree with this modification that the rate of interest was reduced from 12 per cent which the plaintiff had claimed to 9 per cent per annum. Now, the defendants have come up in second appeal.