KAUNSILLA Vs. CHANDAR SEN

JUDGEMENT

(1.) On the 19 June 1872, one Jagannath mortgaged 11 1/4 biswas in a particular mahal to Tulshi Ram. This mortgage was a simple mortgage, but it appears that subsequently the mortgagee was let into possession (it is not shown how), and from that time the mortgage was treated as if it had been a usufruotuary mortgage. Jagannath died leaving three sons, Raghunath Das, Narain Das and Mulohand, who may be described as Mulohand No. 1.

(2.) On the 29 October 1881, Raghunath and Narain Das sold their two-third shares in the 11 1/4 biswas (or 7 1/2 biswas) to Tuishi Ram, who thus became the owner of the 7 1/2 biswas, and continued to be the mortgagee of the 3 3/4 biswas of Mulchand No. 1. The share of Mulohand No. 1 remained unaffected. Tuishi Ram, who owned another 5 biswas in the same mahal, died, leaving a son Mulchand No. 2. Mulchand No. 2, who was in possession of the Hi biswas and his 5 biswas, on the 3 January 1887, executed a mortgage purporting, as full owner, to mortgage the entire 16i biswas to Musammat Kaunsilla and Bishan Lal. The mortgagees, Musammat Kaunsilla and Bishan Lal, brought a suit upon their mortgage against Mulchand No. 2 only, and obtained a decree for sale, and under that decree the property was sold on 20 June 1895, and purchased by Musammat Kaunsilla for Rs. 7,000 odd. This sale was confirmed, and she obtained possession on the 24th September 1895.

(3.) On the 22 February, 1897, the plaintiff-respondent Chandar Sen, who had previously, on the 24 May 1897,purchased Mulchand No. 1's 3f biswas, sued to eject the defendant Musammat Kaunsilla. He was given an opportunity of redeeming, but he declined to accept it. The Lower Appellate Court has given the plaintiff a decree for his claim as made.