MOTILAL JADAV Vs. SAMAL BECHAR

JUDGEMENT

(1.) The actual question we have to decide in suit No. 221 of 1921 is whether the plaintiff Jadav Gopal is entitled to redeem three acres and twenty gunthas or thereabouts being part of the land comprised in the mortgage of June 9, 1S39, Exhibit 19, as against defendant No. 1, Samal Bechar.

(2.) The litigation has had a most unfortunate history. This is the fifth Court to hear the dispute, and so far each Court has reversed the decision of its predecessor. The original mortgage comprised in addition to the three acres and twenty gunthas further land making in all seven acres and nine gunthas. But it is clearly found by the learned District Judge in appeal that there was in effect a partition over fifty years ago between the two branches of the family of the original mortgagee Vithal Ranchhod. The one branch represented now by defendant No. 1, Samal Bechar, took these three acres and twenty gunthas. The other branch represented now by defendants Nos. 2, 8 and 4 took the remaining property.

(3.) The learned Judge says:- In the present case, though the partition of the mortgaged property between the heirs of the mortgagee can be inferred from the document, Exhibit 17, passed by Bechar Ishvar and attested by Bhukhan Girdhar, there is no evidence be prove that this arrangement was agreed to or acquiesced in by the -mortgagor or his heirs. That brings me to the real point in dispute. Clearly, on the dates I have given, the redemption of the mortgage would prima facie be barred by lapse of time. But at any rate as against defendant No. 1 the plaintiff relies for an acknowledgment on the document of May 3, 1878, Exhibit 17, passed by the father of defendant No. 1 in favour of the father of the plaintiff. That document was a sub-mortgage of these very three acres and twenty gunthas; and, moreover, the learned District Judge has found that it was attested by Bhukhan Girdhar, the then representative of the other branch of the mortgagee's family,