JADUBANS SAHAI Vs. BAHURIA PHULPATI KUER

JUDGEMENT

(1.) These are second appeals by the plaintiffs from the Judgment and decrees of the 4th Additional Subordinate Judge, Chapra, dated the 28th February 1950, reversing the decision of the Munsif, 2nd Court, Chapra, dated the 7th August 1948, under which the plaintiffs' suit for redemption and possession of the mortgaged properties was decreed.

(2.) The mortgage sought to be redeemed is a usufructuary mortgage executed so long ago as February 23, 1871, by Musammat Deorani Kuer, as mother and guardian of Agin Prasad Singh, ancestor of defendants third party in favour of Shedgulam Sah, grandfather of the husband of defendant No. 1, for a consideration of Rs. 1,875. The mortgaged properties consist of proprietary shares in certain villages comprised in new tauzi No. 1804 (parent tauzi No. 1761) of the Saran CoIIectorate. The mortgage bond provides (1) that the entire mortgage money will be repayable in five, years, and in the event of non-payment, the mortgage will remain in force until repayment, and (2) that the mortgagee will pay annually by way of haqhazri Rs. 108, in the first instance, to certain ladies named therein and later, on the death of the ladies, to the mortgagor himself., Defendant No. 1 is the successor-in-interest of the original mortgagee. The plaintiffs acquired the equity of redemption, partly by purchase at auction sale on 13-3-1912 held in execution of a mortgagee decree followed by delivery of possession on 11-12- 1912, and partly by private treaty by virtue of a registered deed of sale dated 27-6-1933, and thereafter served on defendant No. 1 a notice dated 29-5-1954 through Sri Sukhdeo Prasad, Advocate,'Chapra, offering to redeem the mortgage. Mr. Harvey, the Manager of defendent No. 1, the mortgagee, sent a reply thereto on 15-6-1934 agreeing to permit redemption on payment of the entire mortgage money. He denied, however, the liability to account for nonpayment of the haqhazri. The plaintiffs took no further steps; In 1.943 the entire tauzi was sold at auction which took place on 11-1-1943 under Act XI of 1859 and was purchased by Swami Satkop Dass, defendant second party. The plaintiffs instituted the present suit for redemption on 11-1-1944. They claimed possession of the mortgaged properties and also a sum of Rs. 43,083-7-74 p. from defendant No. 1 on the allegation that this sum was surplus in their hands after liquidation of the mortgage debt with the haqhazri. They alleged that the mortgagee paid the haqhazri of Rs. 108 only so long as the said ladies were alive and defaulted in payment since after 1882 when the ladies died one after another. According to them the entire mortgage money was repaid with the haqhazri by September 25, 1893, and thereafter the sum of Rs. 108 payable to the mortgagors was appropriated by the mortgagee, and the total amount of haqhazri up to the date of suit comes to Rs. 43,083 odd. They alleged further that the mortgagee was liable for payment of "the Government revenue in respect, of the mortgaged properties, that she fraudulently brought about the revenue sale and herself purchased the properties benami in the name of defendant No. 2 and that notwithstanding the revenue sale 'the mortgage remained in force and she was holding the properties as mortgagee in trust for and on behalf of the mortgagors. They contended that it had not the effect of extinguishing the mortgage. The suit was evidently instituted more than sixty years after, but they alleged that the suit was not barred by limitation as the acknowledgment by Mr. Harvey purported to extend the period of limitation and further that, in any case, the starting period of limitation in this case was September 25, 1893 when on account of the discharge of the entire mortgage debt with the haqhazri the mortgagors became entitled to possession of the mortgaged properties.

(3.) The suit was mainly resisted by defendants Nos. 1 and 2. Defendant No. 1 denied that the revenue sale was fraudulently effected. She denied further that she had defaulted in payment of the revenue in respect of the mortgaged properties and alleged that the revenue sale was occasioned by default of other co-sharers. She further pleaded limitation and alleged that the acknowledgment of the mortgage debt by Mr. Harvey was not binding upon her as he had no authority to acknowledge debt on her behalf. She also denied that defendant No. 2 was her benamidar and alleged that the mortgage was totally extinguished by the revenue sale and that the plaintiffs were not entitled to redemption. She denied that she was the real purchaser at the revenue sale and alleged that defendant No. 2 had purchased the tauzi in question in his own right. The further defence taken by her was that the defendants third party were not successors-in-interest of the mortgagors and, therefore, the plaintiffs had acquired no valid title by virtue of their purchase from them. Defendant No. 2 by a separate written statement supported the defence set up by defendant No. 1.