SK NAWAB Vs. BAIJNATH CHOUDHURY

JUDGEMENT

(1.) This is an appeal by the defendants. It arises out of a suit for redemption which has been decreed on certain terms. The defendants as well as the plaintiffs are aggrieved by the judgment and decree of the learned District Judge and the plaintiffs have filed a cross-objection.

(2.) The following facts will indicate the points that arise for determination in the appeal and the cross-objection. In December, 1925, three persons, namely Soney Lal Chaudhary, father of plaintiffs Nos. 1 and 2, Siaram Choudhary, father of plaintiffs Nos. 3 and 4, and one Rashbehari Choudhary had executed the bharna bond in question in favour of one Bhikhari, ancestor of the defendants. The plaintiffs' case was that they approached the defendants asking them to accept the mortgage money and give up possession of the lands given in mortgage, but the defendants refused. Thereupon the plaintiffs deposited the money under Section 83 of the Transfer of Property Act In spite of this deposit the defendants did not give up possession and hence the plaintiffs were compelled to institute this suit for redemption claiming mesne profits also.

(3.) The suit was really contested by defendants Nos. 1, 2 and 4 and two of the allegations of the defendants may be noted. The first allegation was that about a year after the execution of the mortgage in question, the mortgagors had sold the mortgaged property to Bhikhari after taking Rs. 100/- as consideration in addition to the amount secured by the mortgage. The second allegation was that if the plaintiffs were held to be entitled to a decree for redemption they could not get possession unless they paid in addition to the mortgage money the amount of rent which had been paid by the mortgagees for the mortgaged property with compound interest at the rate of Re. 1/- per cent. per month. During the trial of the case the defendants gave up their contention about the purchase of the land set up by them, that is to say the suit proceeded on the basis that the mortgage was still subsisting.