RAMLOCHAN SINGH Vs. PRADIP SINGH

JUDGEMENT

(1.) There are two appeals, Second Appeal No. 1667, of 1951 and Second Appeal No. 1545 of 1953. These two consolidated appeals have been heard analogously and will be disposed of by this judgment. It will be more convenient to deal with them separately SECOND APPEAL NO. 1667 of 1951.

(2.) This is an appeal by the plaintiff from the judgment and decree of the learned Subordinate Judge, Begusarai, dated 8-9-1951, by which he, in reversal of the judgment of the learned Munsif dated 6-6-1950, dismissed the appellant's suit for redemption of a usufructuary mortgage bond dated 1-7-1901 executed by the ancestors of defendants second party in favour of Mukhilal Singh ancestor of defendants first party. The mortgaged land is 4 bighas 18 kathas which formed part of a holding of 6 bighas 6 kathas 9 dhurs. In 1929 defendants second party transferred to the plaintiff 6 bighas 6 kathas 14 dhurs of land including the mortgaged property by a registered sale deed dated 18-5-1929, for a consideration of Rs. 1000. The mortgage money due under the usufructuary mortgage bond of 1-7-1901 was leit in deposit with the plaintiff for payment to the mortgagee, namely, defendants first party. The plaintiff, it is alleged, tendered the mortgage money to them, and, when they refused to accept the money, he deposited the same in court under S. 83 of the Transfer of property Act on 3r5-1945. Notice of "this deposit was given to the defendants first party; still they did not accept the money and give up possession. Thereupon the plaintiff instituted the present suit for redemption of the mortgage and for possession of the mortgaged property.

(3.) The defence, in the main, was that the document of date 1-7-1901 was not a usufructuary mortgage bond, but a sale deed out and out, and the defendants had acquired, by virtue, of the said instrument of transfer an absolute right to the property in dispute, and the plaintiff, by virtue of the sale deed dated 18-5-1929, acquired no valid title and is not entitled in law to ask for redemption.