HIMMAT SAHAI Vs. SHEIKH MOHDMOIN

JUDGEMENT

(1.) This is a first appeal from a decree of the second subordinate Judge of Gorakhpur delivered on 19 of July 1935, rather over five years ago. The suit was a mortgage suit and the circumstances are a trifle complicated. On 26 March 1913, Lala Batuk Sahai, who is defendant 1 to the suit, executed a mortgage of two one-anna shares in a certain property in the village of Madhopur in favour of one Sheikh Muhammad Husain, to secure a principal sum of Rs. 2000 and interest thereon. I do not know why the mortgage was taken in the name of Sheikh Muhammad Husain as the mortgagee, but it is admitted for the purpose of the present suit that the real mortgagee was one Maulvi Muhammad Mohsin Sahib, the brother of Muhammad Husain. The next event in order of date is that on 15 June 1914 the same mortgagor, Lala Batuk Sahai, executed a second mortgage of the same two one-anna shares in favour of the present appellant, Lala Himmat Sahai, who is defendant 4 to the suit. It covered all the sir and khudkasht lands which had been mortgaged under the mortgage of 1913. The next thing that happened was that on 14 May 1915 the mortgagor, Lala Batuk Sahai, sold to the mortgagee, Maulvi Muhammad Mohsin Sahib, one of the two one-anna shares which was subject to the mortgage of 1913. It is the effect of this transaction which constitutes the bone of contention in this suit and it is necessary, therefore, that I should refer to its contents a little carefully. The document is before me as Ex. 12 on p. 33 of the record. In form, it makes no reference at all to the mortgage of 1913 and on its face might be referring to an unencumbered property. It begins by setting put certain reasons why the mortgagor desired to raise money and it goes on to explain that he has for these reasons "made a sale and permanent transfer of a one-anna share" in the zamindari in question to Sheikh Muhammad Mohsin in consideration of the payment of Rs. 1500 in cash by the purchaser to him, Rs. 400 of which was paid on or before the execution of the deed and a further Rs. 1100 at the time of its registration. He went on to say: From this day I have ceased to have any concern with the share and land sold and the said vendee has become and shall continue to be the absolute and permanent owner in possession thereof. I, the executant, or my heirs, neither have nor shall have any concern with the ownership or possession of the property....

(2.) Finally, he acknowledges the receipt of the full amount of the consideration in cash. So much, therefore, for the sale of 1915 of one out of the two one-anna shares mortgaged by the mortgages of 1913 and 1914. In the year 1920 there were two further mortgages, one in favour of defendant 5, Sheikh Kariman, and the other one in favour of somebody else, which is now vested in Sheikh Kariman also. Those mortgages affected the remaining one-anna share only. Finally, on 22 July, 1925, came the further mortgage which is the one which has given rise directly to this suit. It is a simple mortgage by the same mortgagor, Lala Batuk Sahai, together with his son who this time is added as co-mortgagor. Nothing, however, turns upon that. It begins by reciting the mortgage of 26 March 1913 under which Rs. 2000 had been borrowed. I should perhaps have said at an earlier stage that it was a term of the 1913 mortgage that the principal money and interest secured there, by should not become payable for a period of three years. It goes on to recite that the principal and interest under the 1913 mortgage had become due, and it says: As the period stipulated therein was for three years, which has expired, and the debt could not be paid as yet, and as repeated demands are being made on behalf of the creditor and I have got no money to pay and thereby redeem my share we, the executants, on our admission of the liability of the debt abovementioned, have made the creditor agreeable to change the document...

(3.) It then goes on to explain, in effect, that the principal and interest due on the 1913 mortgage amounted to Rs. 3300 and it proceeded, in the form of a fresh mortgage, to charge the remaining one-anna share with payment of that sum of Rs. 3300 together with a further sum of Rs. 40, which may, I think, be taken to represent the expenses of the transaction. The operative part of the deed actually says: Accordingly both of us, the executants, have, of our free will and accord, changed the former document, and having added the present amount of debt therein, covenant that we shall pay up in full the amount of Rs. 3340 to Sheikh Mohammad Mohsin, son of Sheikh Mohammad Gada Husain, deceased, resident of Mohalla Nizampur, Gorakhpur, within the period of three years without any hesitation, that till the payment, the same rats of interest, i.e., 8 annas per cent, per mensem, shall be charged, and that in lieu of the principal amount and interest, our one anna zamindari share in the partitioned mahal No. 2, with all the rights situate in mauza Madhopur shall stand, as before, mortgaged and hypothecated.