PRAG Vs. RAM NIRANJAN

JUDGEMENT

(1.) The facts found by the lower Appellate Court are as follows

(2.) In April 1887, Akbar Ahir mortgaged his share in a fixed-rate holding to the respondent, Ram Niranjan, for Rs. 40. In May 1892, he mortgaged the same property to one Bhagwan Das. In June 1893, he mortgaged the same property along with a house, trees etc., to Ram Niranjan for Rs. 150, out of which the sum of Rs. 61-8-0 was due upon the mortgage of 1887. In 1899, the heirs of Bhagwan Das sued upon the mortgage of 1892 and obtained a decree for sale in execution of which they themselves bought the holding in August 1901. In that suit, they impleaded Ram Niranjan as a puisne mortgagee. Ram Niranjan had at the time a minor son, Bhagwan Prasad, who was joint with him and was interested in the mortgage. The decree shows that Ram Niranjan did not defend the suit. It is said that he was in Jail and that he sent a petition from Jail claiming to be a prior mortgagee of the property. The fact that he was in Jail was admitted before me but there is no such petition on the record. By deeds dated 1904 and 1909, the heirs of Bhagwan Das sold the plots of land to the grandsons of the original mortgagor Akbar and it has been found that the real purchaser was Akbar himself.

(3.) Ram Niranjan and his sons (two were born after the previous suit) have now sued upon the mortgage of 1893. The Munsif dismissed the suit but the Additional Judge on appeal held that the mortgage of 1893 was originally binding upon Akbar s family to the extent of the sum due upon the first mortgage of 1887 and that it could to that extent be enforced against the property in the hands of Akbar and his family, notwithstanding the suit of 1899 and subsequent proceedings. His view was that the sons of Ram Niranjan, not having been impleaded in the previous suit, were not bound by the decree obtained therein and that as the property bad got back to the mortgagor, the latter could not be allowed to hold it free of the mortgage which had not been paid off.