MAHENDRA MAHTO Vs. SURAJ PRASAD OJHA

JUDGEMENT

(1.) These two appeals by the plaintiff arise out of the same suit for redemption. The facts so far as they are necessary for the disposal of these appeals, may be stated as follows. On 17th March, 1927, Ramasray, through his mother and guardian, executed a usufructuary mortgage bond in respect of 3 bighas 3 kathas 2 dhurs of kasht land together with some homestead land for a consideration of Rs. 2400 in favour of Satnarain, husband of defendant 1 and father of defendants 2 to 5. On 16th June, 1942, Ramasray, on becoming major, executed in favour of Satnarain aforesaid another usufructuary mortgage bond in respect of the same property for a consideration of Rs. 2500. Nearly five years later on 6th June 1947 Ramasray sold equity of redemption in respect of half of the mortgaged properly to the plaintiff for Rs. 2500 by a registered sale deed. Out of the consideration, Rs. 1950 were left in deposit for payment to the mortgagee Satnarain and Rs. 500 were paid to the mortgagor Ramasray in cash. It appears that in the meantime one Kamalnarain in a suit for money against Ramasray in a court of Small Causes at Calcutta obtained a decree and after transfer of the decree to Chapra put that decree into execution by attachment and sale of the aforesaid mortgaged 'property along with other properties. The properties were eventually sold at auction on 4th October, 1947 and were purchased by Suraj Prasad Ojha defendant 6 (respondent 1). The latter obtained delivery of possession through court on 2nd February, 1949.

(2.) The plaintiff offered Rs. 1250 to defendants 1 to 5, the heirs of the original mortgagee Satnarain, and on refusal of the offer by the mortgagee instituted the present suit on 3rd September, 1949 on the ground that as the purchaser of the equity of redemption, though in part, was entitled in law to redeem the mortgages in their entirety.

(3.) The defendants resisted the suit by two separate written statements one on behalf of the mortgagees (defendants 1 to 5) and the other on behalf of the auction-purchaser (defendant 6) raising similar defences. They denounced the sale deed in favour of the plaintiff as a farzi, fraudulent and fictitious document brought into existence by Ramasrey without consideration for defeating his creditors and contended that, therefore, the plaintiff was not in law entitled to redeem the mortgages. They also pleaded that the mortgages were no longer subsisting but that they had been already redeemed by the auction-purchaser (defendant 6). 3. The learned Munsif held that the safe in favour of the plaintiff was genuine and for consideration, that the mortgages aforesaid had not been validly redeemed and that the plaintiff was, therefore, entitled to redeem them. Against this decree, two appeals were taken to the District Judge - one by defendant 6, being Title appeal 50/2 of 1951/52 and the other by defendants 1 to 5, being title Appeal 64/6 of 1951-52. While the former questioned the correctness of the decision as a whole the latter contested the decree only so far as it related to costs against them. The learned Subordinate Judge who disposed of the appeals, took a different view altogether. He held that the sale in favour of the plaintiff was fraudulent collusive and farzi and without consideration, and that, therefore, the plaintiff was not entitled to redeem. He further held that the mortgages were not subsisting but that they had been redeemed already by the auction-purchaser, defendant 6, and, therefore, defendants 1 to 5 should not have been saddled with costs. The learned Subordinate Judge accordingly allowed both the appeals and set aside the judgment and decree of the learned Munsif and dismissed the suit with costs throughout. Now, the plaintiff, has preferred these two second appeals from the decrees in the aforesaid two appeals.