BALWANT SINGH Vs. RCLANCY AND MAHARAJ SINGH

JUDGEMENT

(1.) These are two consolidated appeals from decrees of the High Court of Judicature for the North-Western Provinces at Allahabad, dated the 27th of March, 1906, which varied a decree of the dinate Judge of Aligarh, dated the 14th of April, 1903.

(2.) The suit in which these appeals have arisen was brought on the 26th of September, 1901, by the assignee of a mortgage to recover Rs. 5,67,978-8-0 principal and interest, claimed under the deed of mortgage. The mortgage deed, which is dated the 28th of October, 1892, purports to have been made between Raja Sheoraj Singh Bahadur, mortgagor, of the first part, Maharaj Singh, the only brother of the said Raja Sheoraj Singh, of the second part, and the Bank of Upper India, Limited, of the third part. Sheoraj Singh and Maharaj Singh were, with others, made defendants to the suit.

(3.) Sheoraj Singh was the sole mortgagor, and, by the deed of mortgage, Sheoraj Singh, declaring that he was the absolute owner in possession of the several villages, lands, hereditaments, and premises in the deed mentioned, and that there was no sharer in the said property, purported to mortgage the property to the Bank of Upper India, Limited, as security for the repayment with interest of Rs. 3,00,000 lent to him by the Bank. Maharaj Singh was not a mortgagor, nor did it appear by the mortgage deed that he had any proprietary interest in the mortgaged property or was obtaining any benefit from the loan to his brother Sheoraj Singh; Maharaj Singh was made a party to the deed of mortgage in order that the fact of his having signed the deed might afford evidence that he had assented to the taking of the loan by Sheoraj Singh and the granting of the mortgage. The suit is one for sale of the property mentioned in the mortgage deed, and by the suit the plaintiff sought to make Maharaj Singh personally liable for the mortgage debt and interest, and to bring to sale Maharaj Singh s share in the mortgaged property, which in fact, was the ancestral property of the joint Hindu family which at the date of the mortgage consisted of Sheoraj Singh and Maharaj Singh. The mortgage was assigned on the 2nd of August, 1897, by the Bank of Upper India, Limited, to Raja Balwant Singh, who was the plaintiff in the suit. Raja Balwant Singh is now dead, and his minor son, Raja Surajpal Singh, is represented in this litigation by the Collector of Etah, who is in charge of his estate.