DURGA PRASAD Vs. CHUNNI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for redemption of a mortgage dated 24 July 1882. The mortgage was with respect to zamindari share, groves and an occupancy plot and was executed by three brothers named Khuman, Thakuri and Channi in favour of Mt. Shibbo, the predecessor-in-interest of the defendants-appellants. The family pedigree of the mortgagors is as follows:

(2.) Channi, one of the mortgagors, died shortly after the execution of the mortgage leaving three sons shown in the above pedigree. Mathuri, one of the sons of Channi, had attained majority, but his other two sons were then minors. On 17 August 1887, Khuman, Thakuri and Mathuri sold their seven-ninth share in the equity of redemption of the zamindari and groves mortgaged to the sons of Mt. Shibbo. The sale however was not with respect to the occupancy plot. As a result of this sale the mortgagee or her sons became absolute owners of seven- ninth of the zamindari and the groves mortgaged. The suit giving rise to the present appeal was brought by the grandsons of Khuman for redemption of the remaining two-ninth share of the mortgaged property. It would appear from the facts stated above that Chaturi and Murli retained their equity of redemption in the entire mortgaged property and it is common ground that after their death their share in the equity of redemption devolved on Pati Lal therefore became entitled to the two-ninth share in the equity of redemption. Pati Lal also died before the present suit was filed. The plaintiffs claim as formulated in the plaint was that on the death of Pati Lal they became entitled to a two-ninth share in the equity of redemption, and as such, were entitled to redeem the mortgage to that extent. The defendants contested this allegation of the plaintiffs on the ground that the heir of Pati Lal was his sister Lilawati and the plaintiffs were not his heirs under the law. This contention of the defendants was accepted by both the Courts below and there is no controversy about it in the present appeal.

(3.) In the trial Court the plaintiffs put forward an alternative ground in support of their claim. They submitted that as one of the items of the mortgaged property was an occupancy plot and as that plot was not sold by the mortgagors, the plaintiffs, as heirs of Khuman, one of the mortgagors, were entitled to a one-third share in that plot, and as such had the right to maintain the suit. In reply to this alternative case the defendants alleged that Khuman, Thakuri and Mathuri had relinquished their occupancy rights in the plot in the year 1888 in favour of the mortgagee and, accordingly, they maintained that the plaintiffs did not inherit any share in the occupancy plot from Khuman. The trial Court appears to have accepted the fact of relinquishment of rights, but held that as the alleged relinquishment was not by all the tenants and was not "in favour of the whole body of landholders," the relinquishment was invalid. It further made the following observations on this part of the case: As a matter of fact no question of the surrender of occupancy rights could have arisen at the time because, as I have said above, plot No. 63 was in possession of the mortgagee under the usufructuary mortgage and there was no question of relinquishing its possession in favour of the defendants. The alleged surrender, in my opinion, therefore was simply a meaningless affair and the defendants as legal representatives of the original mortgagee are in possession of plot No. 63 as mortgagees.