DEOPATO KUER Vs. KAMAL PRASAD SINGH

JUDGEMENT

(1.) This is a plaintiffs' appeal against a judgment of reversal in a suit for redemption filed by them. Their suit for redemption was in respect of a zarpeshgi deed dated 27-1-1941 alleged to have been executed by one Most. Mana Kuer, widow of Deolal Kuer, and one Most. Punkalo Kuer, widow of Chander Kuer, in favour of one Sheoshankar Sah. That zarpeshgi deed was in respect of an area of 5 kathas 8 dhurs of land comprising plot No. 525 (area 1 katha 2 dhurs) and plot No. 526 (area 4 khatas 6 dhurs) of khata No. 24 of village Basantpur, for a consideration of Rs. 60/- only. Further prayer was for a decree for mesne profits from the date of tender. The trial court had decreed the suit for redemption whereas the lower appellate court has dismissed the suit on a finding that the equity of redemption was no longer subsisting. Against this judgment and decree the plaintiffs have come up in second appeal.

(2.) In order to appreciate the facts involved for determination of the issue in question in this case, it would be worthwhile to give a genealogy as under- <FRM>JUDGEMENT_18_AIR(PAT)_1976Html1.htm</FRM> It would be seen from the aforesaid genealogy that Deolal was a first cousin of Chandar. Deolal died leaving behind a widow Most. Mana Kuer alias Munia, and a sister Most. Dhanesara. Mana Kuer is said to have died sometime in 1951. On the other hand Chandar died leaving behind a widow Most. Punkalo alias Most. Ramkalo and two sons Hira and Harihar. Hira is said to have died sometime in the year 1947 leaving behind a widow Most. Chandrapato. The original plaintiffs in the suit were Bhagwat Kuer, plaintiff No. 1, the own brother of Chandar, and Ambika Kuer, plaintiff No. 2. being the son of plaintiff No. 1. This genealogy is not in dispute. According to the plaintiffs' case, the zarpeshgi deed in question was executed on the 27th of January, 1941, by Most. Mana alias Munia and Most Punkalo alias Ramkalo. In 1942 the aforesaid mortgage was assigned to the sole defendant respondent. The plaintiffs claim to be the purchasers of the equity of redemption in the following manner. On 6-12-1952 a registered sale deed (Ext. 1) was executed by Most. Dhanesara regarding 2 kathas 13 dhurs of plot No. 526 only appertaining to the half share of Deolal. This sale deed is said to have been executed in favour of plaintiff No. 2 By another registered sale deed dated 3-4-1961 (Ext. 1/a) plaintiff No. 1 Bhagwat claims to have purchased the remaining half share of Chandar's branch from Harihar and Most. Chandrapato, widow of Hira. This sale deed is in respect of 3 kathas 9 dhurs out of plot Nos. 525 and 526. It is further claimed that on 23-3-1961 a tender was duly made by the plaintiffs to the defendant, which was refused, and thereafter a deposit under Section 83 of the Transfer of Property Act, 1882 (hereinafter to be referred to as the Act) was made and notice served on the defendant respondent which he refused to accept. Hence, the suit for redemption along with the claim for a decree for mesne profits.

(3.) According to the defendant respondent's case, it was not correct to say that the zarpeshgi deed dated 27-1-1941 was executed by Most. Mana and Most. Punkalo; actually it is said to have been executed by Most. Mana and Chandar. The other particulars regarding the area and the description of the land were accepted as correct. Although, it was admitted by private arrangement Deolal and Chandar had ioint interest in the land in question, it was disputed that they were in possession of the equal share. According to the defence case, Chandar's interest was to the extent of 2 kathas 14 dhurs only. This area of 2 kathas 14 dhurs comprised the whole of Plot No. 525 (area 1 katha 2 dhurs) and only 1 katha 12 dhurs out of Plot No. 526. The remaining area out of the total area in dispute fell in the share of Deolal. In 1952 the mortgage was assigned to the defendant who, in his turn, is said to have acquired the equity of redemption in the following manner. On 4-6-1947 the defendant mortgagee took a sale deed (Ext. A) from Harihar, which also purported to be a confirmation of a previous oral sale by Hira in favour of the defendant. This registered sale deed was executed for a consideration of Rs. 85/- out of which Rs. 30/- being the half share of the mortgage money was adjusted against the half share of consideration of the mortgage, Rs. 10/- was given for the shradh of Hira and Rs. 45/- was adjusted against a loan on a stamped paper dated 14-5-1942 advanced by one Sheojit, uncle of the defendant. Sometime in the year 1949 the interest of Deolal is said to have been purchased orally by the defendant from the widow of Deolal. Most. Mana Kuer who was, as already stated, one of the mortgagors, for Rs. 75/- out of which Rs. 30/-was said to have been adjusted against the half share in the mortgage due and Rs. 45/- was paid in cash to Most. Mana Kuer. Thereafter the defendant claims to have been put in possession qua a kashtkar and he no longer continued in possession as mortgagee. On 1-8-1950 a stamped receipt (marked as Ext. C by the lower appellate court) was said to have been executed by Most. Mana Kuer to prevent any future litigation reciting the acknowledgment regarding the transaction of oral sale which had taken place in 1949.