ENTISHAM ALI Vs. JAMNA PRASAD

JUDGEMENT

(1.) Eshan Ali Khan, being in possession of a bazaar called Ehsaganj, mortgaged it to Sheo Prasad by a mortgage dated November 9, 1873, and further encumbered it with charges in favour of the mortgagee, the total amounting to Rs. 2073. The mortgage was a usufructuary one, and the mortgagee was put in possession of the bazaar. Along with the bazaar certain other properties were also mortgaged. On December 18, 1882, Ehsan Ali Khan is said by the plaintiff, who is the present appellant, to have sold the property, subject to the mortgage and charges, to the appellant's predecessors in title for Rs. 3000; it being calculated that Rs. 2800 would be the amount of the encumbrances with interest and costs and Rs. 200 the value of the equity of redemption. Therefore only Rs. 200, as the plaintiff alleges, was paid to Ehsan Ali Khan. The devolution of the property thus sold, if it was in fact sold, from the original vendees to the appellant is not in dispute.

(2.) On October 16, 1911, the plaintiff (the present appellant) with another co-plaintiff whose interest he has since acquired, instituted this suit, claiming under the alleged deed of sale and the subsequent devolution to be representatives of the original mortgagor, against the respondents, who are the representatives of Sheo Prasad, the original mortgagee ; asserting their title to redeem and alleging that upon the true taking of the accounts the mortgage charges had been fully paid off, that certain terms as to interest and compound interest were penal or illegal and that, in truth, money was due to them from the representatives of the mortgagee. They prayed for possession, for a decree for the surplus amounts and for other relief.

(3.) The defendants traversed the statements in the plaint and pleaded that the alleged deed was not genuine or for consideration ; that no right accrued from it to the vendees ; that they did not pay any consideration money to Ehsan Ali Khan and refused to complete ; that, accordingly, Ehsan Ali Khan cancelled the deed and retained his interest; that he in fact dealt with it subsequently by further charges in favour of the mortgagee and by professing to sell it over again to Wasi-uzzaman, who also in his turn repudiated the sale, because the property was not worth it ; and they relied upon the supposed adverse possession of Ehsan Ali Khan. They further said that on some occasion without date, but subsequent to the transactions already mentioned, Ehsan Ali Khan finally sold to them his equity of redemption for Rs. 10, and, somewhat inconsistently, they said that the heirs of Ehsan Ali Khan, who by this time was dead, were necessary parties to the suit. However, they offered no evidence in support of the Rs. 10 story.