KALLA Vs. HARGIAN

JUDGEMENT

(1.) ON the 29th of January 1909, Hargian, Bhogi Ram, Paran Sukh and Khachera executed a mortgage with possession in favour of Manik to secure a sum of Rs. 1,500. The entire property mortgaged was 26 bighas. 5 biswas. The share of Hargian in that was 4 bighas, 18 biswas, that of Bhogi Ram, 1 bigha, 12 biswas, and the remaining 19 bighas, 15 biswas, belonged to Paran Sukh and Khachera. The mortgagors undertook a liability joint as well as several to pay the mortgage- debt. ON the same day Hargian, executed a deed by way of Mashrut-ul-rehan (a further charge) in favour of Manik, in which he mortgaged his own share amounting to 4 bighas, 18 biswas, for a sum of Rs. 99. In this separate deed by way of Mashrul-ul-rehan, he stipulated that at the time of redeeming the mortgage executed jointly by him and three other persons, he would pay the money due under this separate deed. There in a recital in the mortgage-deed that a sum of Rs. 150 was due by Hargian to Kalla and others. The plaintiffs then brought a suit for the pre-mortgage of the share of Hargian under the mortgage-deed dated the 29th of January 1909, executed by four persons already mentioned. The plaintiffs in their plaint alleged that the share of Hargian in the mortgage-debt was only a sum of Rs. 153, out of which the plaintiffs were, according to the recital in the deed, entitled to a sum of Rs. 150, and that, therefore, they were entitled to pre- mortgage on payment of Rs. 3. The Court of first instance decreed the claim, and the decree of that Court was affirmed by the lower Appellate Court except as to costs. That Court directed that the plaintiffs, in order to succeed in their suit, were bound to pay a sum of Rs. 356-8, over and above the sum of Rs. 150, which was due upon their own mortgage. The plaintiffs have preferred a second appeal to this Court, and it is contended by their learned Vakil that the transaction by way of Mashrut-ul-rehan being a separate and independent transaction, the plaintiffs are entitled to pre-mortgage the prior transaction alone, and that the mode adopted by the Courts below of determining the amount which the plaintiffs are bound to pay under the mortgage is wrong. Both these pleas, in our opinion, are well founded. We have no doubt that the mortgage of 29th January 1909, is a transaction quite separate from the transaction evidenced by the deed of Mashrut- ul-re.han of the same date. The mortgagors under the mortgage are four persons, and every one of them has undertaken a liability joint and several. The mortgaged property is 26 bighas, 5 biswas. The mortgage is a mortgage with possession. In the deed of Mashrut-ul-rehan, Hargian only is the mortgagor. The mortgaged property is his share only, amounting to 4 bighas, 18 biswas. The consideration for the Mashrut-ul-rehan is quite distinct from the consideration for the joint mortgage. The mortgage under the Mash rut-ul-return is, strictly speaking, a simple mortgage, while the mortgage under the deed executed by Hargian and the three others, is a usufructuary mortgage. That being so, the plaintiffs in their suit for pre-mortgage are not liable to pay the sum of Rs. 99, secured by the Mashrut- ul-rehan deed. The share of Hargian in the property mortgaged by him along with three other persons, is 4 bighas, 18 biswas, and the entire sum of Rs. 1,500 is a charge upon the entire property amounting to 26 bighas, 5 biswas, The charge on the share of Hargian is, therefore, in the proportion of the value of 4, bighas, 18 biswas, to the value of 26 bighas, 5 biswas. We are supported in this view by the ruling of this Court in Sita Ram v. Nand Ram A.W.N. (1881) 80. As the lower Appellate Court has not come to any finding regarding the value of the share of Hargian and the value of the entire property mortgaged on the 29th of January 1909, we refer the following issue to that Court for a finding: What are the proportionate values of the share of Hargian and of the entire mortgaged property The Court will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objections on return of the finding.