NIRANJAN NATH Vs. SARDAR MAL

JUDGEMENT

(1.) This is a revision against the order of the Additional District Judge, Jodhpur, refusing to reverse the order of the Sub-Judge, Jodbpur, dated 6th November 1948.

(2.) The facts which gave rise to this revision are that the ancestors of one Kushal Raj mortgaged certain house property to the ancestors of Shivnath Mal on 14th December 1850 for a sum of Rs. 1431 (Bijeshahi). After the expiry of 80 years which is said to be the period of redemption of mortgage in Marwar, Sardar Mal the non applicant died a suit for possession of the said property by pre-emption while the said Suit was still pending. Kushal Raj effected a second mortgage of the said property on 22nd October 1936 in favour of Dr. Niranjan Nath for a sum of Rs. 225 with authority to pay up the first mortgage and the value of improvements and interest thereon, which were mentioned to be Rs. 6500. The suit for pre-emption was dismissed on the ground that the first mortgage was a subsisting one.

(3.) Sardarmal thereafter purchased the equity of redemption from Kushal Raj on 24th May 1944 and instituted a suit for redemption on 3rd August 1944 against Shivnath Mal, his two sons Jethmal, Meghraj and his grandson Poonamchand as successors in interest of the first mortgagee and Dr. Niranjan Nath the second mortgagee. The suit was valued at Rs. 1526. The suit was contested by the defendants on various points including a plea that Dr. Niranjan Nath had paid off the first mortgage by making a payment of Rs. 6500 as mentioned in the deed of second mortgage to the first mortgagee on 7th December 1939 and redemption could only be claimed on payment of Rs. 6725 plus interest. Another plea taken was that the suit was beyond the jurisdiction of the Court. While the issue as to jurisdiction was being tried, Dr. Niranjan Nath made an application on 3rd February 1943 that he had assigned his rights of mortgagee to one Gordhan for a consideration of RS. 6991 on 22nd December 1947 and, therefore, his name may be removed from the array of the defendants. The petitioner meant that Gordhan be substituted in his place. This was opposed by the plaintiff on the ground that be had no knowledge of the assignment, which even if it came into existence was a collusive one, and brought about in the same manner as the second mortgage already characterised as collusive. It was also urged that the plaintiff did not consider it necessary to make Gordhan a party as he would be bound by any decree that may be passed against Dr. Niranjan Nath and the assignment was hit by the doctrine of lis pendens.