AMBA PRASAD Vs. MOONGA RAM

JUDGEMENT

(1.) The facts of the case are complicated and will have to be gone into at some length.

(2.) It appears that a 10 biswas share in village Mangora, as described in the plaint, was under a very ancient usufructuary mortgage with one Mr. Wright, in or about 1838. On 19 March 1874 some of the persons in whom the right to redeem was vested made a mortgage of the same property, viz., 10 biswas share, in favour of Durga Prasad, a predecessor-in-title of the appellants before us. The mortgage in favour of Mr. Wright was for Rs. 2,200. The mortgage that was made in favour of Durga Prasad was for Rs. 2,800. Durga Prasad was also one of the persons entitled to share in the property, as a co-mortgagor. It was therefore agreed that Durga Prasad should pay down in cash Rs. 800 to his mortgagors and should pay Rs. 2,200 to Mr. Wright or his successor-in-title for redemption. The difference between Rs. 2,200 and Rs. 2,800 was to be provided for by Durga Prasad himself, inasmuch as Durga Prasad was a co-mortgagor under the ancient mortgage of 1838. Durga Prasad, it appears, obtained assignment of a part of the mortgaged property in 1879. The history behind his purchase is that in 1870 one Akkhay sold to Madho Singh 1 biswas share for Rs. 80. Madho Singh's heirs names were recorded in the khewat. In 1879, Durga Prasad's name was substituted in place of those of Madho Singh's sons. The lower appellate Court has found, and we must accept that finding as correct, that Madho Singh was really a benamidar for Durga Prasad. In the result, before the mortgage of 1874 in his favour, Durga Prasad held two shares in the property, namely 10 biswas, under the purchase of 1870.

(3.) Having acquired the mortgage of 1874, Durga Prasad proceeded to redeem the mortgage of 1838. At this stage, the mortgagee rights of Mr. Wright had become vested in one Faqruddin. Durga Prasad instituted a suit against Faqruddin and it was found that Faqruddin had purchased a 5 biswas share out of the 10 biswas mortgaged with him. In the result, by the judgment of the Court, dated 1st September 1875, Durga Prasad was given a decree for redemption of the remaining 5 biswas alone, Durga Prasad thereupon paid Rs. 1,100, being one-half of the mortgage amount, Rs. 2,200, and obtained delivery of possession.