KHUMA Vs. JIN RAJ

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for refund of money paid by him in lieu of assignment of mortgagee rights in his favour by the defendant Jinraj and others. It may be stated, here, that Jinraj has died during the pendency of this appeal and his sons other than Jabarchand, who was already on the record as defendant-respondent No. 2, have been impleaded as legal representatives. The house in respect of which the mortgagee rights were assigned by Jinraj and others admittedly belonged to Bhika, who mortgaged the same with Jinraj and his son Jabar Chand for Rs. 350/-by a registered mortgage deed dated 7-8-42. On 4-1-50 Bhika executed a gift deed in respect of this house in favour of his wife Smt. Ratni, who in her turn sold it on 10-12-55 to Tulchha and others. THIS sale deed was attested by Jinraj and the documents in respect of this house, which were in possession of Jinraj, were also handed over by him to Mst. Ratni. Only five days after the execution of this sale deed, the vendees Tulchha and others withdrew their claim to the house in question by executing a deed of cancellation of the sale. On the same day, that is, on 16-12-55, Jinraj and his son assigned the mortgagee rights and a money decree dated 1-5-51 for Rs. 851/-obtained by Jinraj and others against Khuma Kalal,in favour of Khnma for Rs. 1,000/ -. The assignment deed has been placed on the record and marked Ex. 3.

(2.) IT may now be relevant to turn to another set of facts pertaining to the insolvency of Bhika, the owner of the house. Bhika had admittedly run into heavy debts and he applied for being declared an insolvent. His application was accepted and on 25 6-55 Bhika was adjudged an insolvent. The house in question had been attached by one of his creditors, viz. , Mishrimal, in execution of the decree obtained by him. Consequently a claim was filed by Khuma before the insolvency court in respect of this house alleging that he was its mortgagee by virtue of assignment of the mortgagee rights in his favour by Jinraj and others. Khuma's claim was, however, dismissed by the insolvency court by its order dated 16-11-57, a copy of which has been placed on the record and marked Ex. 1. Khuma went in appeal, but his appeal was dismissed by this Court (S. B. Civil Misc. Appeal No. 12 of 1958 Khuma vs. Mishri Mal decided on 10-3-58 ). Copy of this order is marked Ex. 2. Thus having lost his claim in respect of the house in question in the insolvency proceedings right up to the High Court, Khuma instituted the present suit in the Court of the Munsif, Sojat, for return of Rs. 1,000/-paid by him to Jinraj and others in lieu of assignment of the mortgagee rights in his favour and certain other incidental charges such as registration fee, and other expenses incurred by him. The total claim is for Rs. 1,600/ -.