RAMDHANI SAHU Vs. JAGDEO LALL MARWARI

JUDGEMENT

(1.) The plaintiffs have appealed from the Judgment of the Additional Judicial Commissioner of Chotanagpure at Ranchi reversing a decision of the Additional Subordinate Judge of the same place in a suit filed by the plaintiffs for redemption of a usufructuary mortgage bond dated 1-10-1910 executed by one Sadhu mortgaging plots 1884 and 790 for Rs. 200/-. The mortgage was in favour of one Biseshwnr Lal Marwari predecessor-in-interest of defendants 2 to 5 and one Jagdeo Lal Marwari, defendant No. 1.

(2.) There were four brothers, Sadhu, Sita. Badri and Prayag. Sadhu was the, eldest member of the family and, as such it was alleged that he had mortgaged the property for legal necessity. In 1925 a suit was filed by Badri and Prayag attacking several others alienations including the mortgage in suit executed by Sadhu on the ground of want of legal necessity and family benefit. They also contended that the mortgage was void as it was in contravention of the provisions of Section 46 of the Chotanagpur Tenancy Act. The present defendants contested the suit and pleaded that Sadhu was the karta of the family that he had executed the mortgage as such for legal necessity and family benefit, and that the mortgage was not hit by the provisions of Section 46 of the Chotanagpur Tenancy Act. It was held by the court that the mortgage was without legal necessity and family benefit, and that mortgage having been also hit by the provisions of Section 48 of the Chotanagpur Tenancy Act was void. It was further held that the claim of Badri for recovery of possession was barred by limitation. So far as Prayag was concerned, the suit was decreed and he was given joint possession of the land along with the defendants.

(3.) In 1911, it appears plot 290 had been purchased by defendant No. 11 and also Mahadeo Lal Marwari the predecessor-in-interest of defendants 12 and 13 in execution of a decree for money against Sadhu. Sita and Sadhu subsequently died. The remaining two brothers Badri and Prayag sold their interest in plot 884 to the plaintiffs by a registered sale deed dated 24-5-1946 for Rs. 1,500/-. The plaintiffs alleged that after this purchase they tendered the money to the defendants which was refused and, therefore, they filed this suit for redemption of the mortgage.