KEHRI SINGH Vs. CHUNNI LAL

JUDGEMENT

(1.) The weight of authority militates against this appeal. The facts are these: One Man Singh executed a usufructuary mortgage of certain property on the 15th of February 1834 in favour of one Bhim Sen, who is the ancestor of the respondents. Subsequently, on the 10th of February 1878, he executed a simple mortgage of the same property in favour of Bhim Sen. Again, on the 11th of February 1873, he executed a simple mortgage in favour of one Bijai Pal Singh. Bijai Pal Singh instituted a suit on foot of his mortgage and obtained a decree for sale against the sons and widow of Man Singh on the 29th of February 1884. In execution of this decree the property was sold on the 20th of December 1888 to Ram Lal, a son of Bhim Sen. The sons of Bhim Sen obtained a decree for sale on foot of their mortgage of the 10th of February 1878 on the 9th of June 1885 and at a sale held in execution of that decree purchased the property. The suit out of which this appeal has arisen was instituted by the present plaintiffs-appellants who are the grandsons and one great-grand-son of Man Singh for redemption of the mortgage of the 15th of February 1864. In their plaint the plaintiffs refer also to the mortgage of the 10th of February 1878. They do not anywhere allege that Bijai Pal Singh, who obtained a decree on foot of the mortgage of the 11th of February 1878, or the sons of Bhim Sen, who instituted a suit on foot of the mortgage of the 10th of February 1878 had any notice of the interests of the plaintiffs at the time of the institution of the suits by them for sale on foot of their mortgages.

(2.) Both the lower Courts have dismissed the plaintiffs claim.

(3.) This appeal has been preferred and the contention of the learned Vakil for the appellants is that in view of the decision of this Court in Ram Prasad v. Man Mohan 30 A. 256 they are entitled to maintain their suit. Mr. O Conor on behalf of the respondents referred us to several decisions of this Court which are inconsistent with the ruling in the case of Ram Prasad v. Man Mohun, A.W.N. (1908) 108