SOTI SURAJ MAL Vs. THAN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff arising out of a suit for sale on a mortgage. The mortgage-deed in suit was executed on the 19 day of October, 1906. Sipahi Singh, defendant No. 1, was the mortgagor and one Ali Muhammad, who sold his rights subsequently to the plaintiff, was the mortgagee. The property mortgaged was all the mortgagor's interests and rights in 20 biswas zamindari of a certain village. The plaintiff alleged that at that time the defendant's name was entered over a 1 biswa, 4 1/2 biswansi share only, and this was mortgaged; that out of this a 6 1/2 biswansi share was sold at auction in execution of a decree on a prior mortgage. He, therefore, claimed the whole of the mortgage money from the remaining 18 biswansis odd. The last mentioned share was sold at auction in execution of a simple money decree and has been purchased by Mulaim Singh, defendant no. 3. Defendant No. 4, Than Singh, has been impleaded as a puisne mortgagee.

(2.) The defence of Than Singh was that the bond in suit did not create any incumbrance; that the mortgagor had acquired a 5 biswa share under a pre- emption decree before the mortgage in suit; that this share was also included in the mortgage, and has subsequent to the mortgage been purchased by the plaintiffs own nephew Parmanand, and that the plaintiff dishonestly released this property from his claim. He further pleaded that the plaintiff could not get more than the proportionate amount of the mortgage debt chargeable on the 18 1/4 biswansis share which the plaintiff wanted to sell. He also pleaded priority to the extent of Rs. 708-5-0. The defence of Mulaim Singh, the son of the mortgagor, was similar. The trial court came to the conclusion that the document of the 19th day of October, 1906, created a mortgage, that the share really mortgaged was only the 1 biswa, 4 1/2 biswansis, originally owned by the mortgagor and with regard to which his name was entered, and did not and could not include the 5 biswas acquired by the pre-emption later on. He further went on to hold that even if the 5 biswas share were supposed to have been mortgaged, that fact could not affect the plaintiff's right to recover the whole of his mortgage money from a portion of the mortgaged property if he so wished. He also came to the conclusion that Parmanand who had purchased the 5 biswas share in execution of a simple money decree, although a nephew of the plaintiff, was separate from him. He decreed the suit for sale subject to the plaintiff paying to Than Singh Rs. 55 on account of the prior charge in the latter's favour. The defendant Than Singh went up in appeal and the learned Judge found (1) that the hypothecated property consisted of 6 biswas, 4 1/2 biswansis, or in other words that the pre-empted share of 5 biswas was also included in the mortgage and (2) that the mortgagee could not throw the burden of the whole of the mortgage money on the 18 biswansis odd share only and release the 5 biswas pre-empted share, purchased by his nephew, from the claim. He also made a slight alteration in the amount awarded to Than Singh as a prior charge holder. Strange to say, the decree as framed in appeal is not exactly in accordance with the findings and this is because of the final order of the District Judge. It runs as follows: "For the above reasons I allow the appeal with costs. The cross-objection is dismissed." The operative part of the judgment did not clearly specify the relief which was granted to the plaintiff or to what extent the appeal had been decreed. The plaintiff comes here in second appeal. His first contention is that the property mortgaged consisted of a 1 biswa, 4 1/2 biswansi share only, as the mortgagor had not become the full owner of the pre-empted property at the time when the mortgage in suit was made and, secondly, that, even if he had become the owner thereof, the mortgagee was under the law entitled to recover the whole of the mortgage money from any portion of the property mortgaged to him and was not bound to enforce his mortgage against the whole of it.

(3.) In order to decide the first point it is necessary to refer to certain facts. As has been stated above, the mortgage in dispute was executed on the 19 day of October, 1906.