BASDEO RAI Vs. JAIMANGAL RAI

JUDGEMENT

(1.) This is a plaintiffs appeal in a suit brought for redemption of a mortgage executed by Dhondha Rai and others on 19 September 1878 in favour of the predecessor-in-interest of the defendants in this suit. The plaintiffs claimed to represent the mortgagors and their suit has been dismissed on appeal by the Subordinate Judge, first, on the ground that the plaintiffs had no right or title to redeem the mortgage as the legal representatives of the mortgagors; and, secondly, because the mortgagees had acquired a proprietary title by adverse possession for more than 12 years.

(2.) The plaintiffs ancestors were the mortgagees of Dhondha and others in virtue of two deeds executed on 23 August 1869 and 16 December 1876 respectively. A notice of foreclosure was served by the mortgagees fin the mortgagors in accordance with Regn. 17 of 1806 on 23ra August 1877 and the order of foreclosure was passed on 2 October, 1877. Under Regn. 17 of 1806 a year's grace was allowed to the mortgagors for satisfaction of the mortgage amount, and that year of grace expired on 23 August 1878. The property to be foreclosed was contained in twelve villages and on 12 July 1878 before the expiry of the year of grace a compromise was entered into between the mortgagees and the mortgagors by which it was agreed that if the mortgagors relinquished their claim to exproprietary rights the remaining 81/2 villages would be released from foreclosure. This compromise however did not come into effect as the mortgagors did not for go their claim to exproprietary rights and in 1880 a suit was brought by the mortgagees for possession in accordance with the order of foreclosure. After the expiry of the year of grace on 19 September 1878, Dhondha and others mortgaged 17 bighas sir land situated in the 81/2 villages which would have been released from foreclosure if the compromise had taken effect to the predecessors of the present defendants. When the present suit was brought for redemption of this mortgage by the present plaintiffs they were met with the defence that as they had become absolute owners of the property by foreclosure on the expiry of the year of grace on 23 August 1878 they could not sue for redemption of a mortgage executed by the former proprietors of the land on 19 September 1878 because the mortgagors had no right subsisting at the time of the mortgage and therefore could not be represented by the present plaintiffs who were the actual proprietors at that time. In the Courts below the plaintiffs pleaded that they did not become absolute proprietors on the expiry of the year of grace because their title was kept in abeyance by the compromise and they should not be held to have acquired the absolute rights until the conclusion of the suit brought by them for possession in the year 1880. This suit was contested and went on appeal to the High Court whose decision is reported in Dhonda Rai v. Meghu Rai [1882] 4 All. 332. This argument was supported by a reference to the decision of the Judicial Committee in Forbes V/s. Ameroonissa Begum [1863-66] 10 A.I.R. 340. But we do not consider that that judgment is an authority for the view put forward by the plaintiffs-appellant. Indeed, this very argument was addressed to a Full Bench of this Court in the case of Ali Abbas V/s. Kalka Prasad [1892] 14 All. 405 and rejected by them. The Full Bench held: that on the expiration of the year of grace, provided that anything remains to be paid under the mortgage and the proceedings under the Regulation were regular, all of which facts appear to have been found here, the title of the conditional vendee becomes that of an absolute vendee and the sale become an absolute sale on that date.

(3.) The subsequent proceedings taken to obtain possession were not necessary to establish the title of the vendees. Nor do we consider that the proposed compromise had any effect in postponing the rights of the present plaintiffs to absolute ownership. In that compromise there was a provision that if the mortgagors failed to carry out their part of the agreement the compromise would cease to operate and the foreclosure would take effect. We are of opinion, therefore that the Subordinate Judge was right when he found that on 19th September 1878 the present plaintiffs, and not the mortgagors, were the owners of the property mortgaged.