AMBA PRASAD Vs. WAHID-ULLAH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff (appellant) for the redemption of a two-thirds share of Katra Gulab Singh situated in Kashmiri Bazar, Agra. The Katra originally belonged to Dhumi Singh, who left three sons, Jwala Prasad, Bhawani Shankar and Debi Shankar. On the 28 of November, 1877, these three brothers mortgaged two stables and a house situated in Katra Gulab Singh in favour of Sukhdeo Rai. The mortgage was simple. On the 6 of March, 1878, the three brothers mortgaged the said Katra Gulab Singh with other properties with possession in favour of Sheikh Abdullah. On the 30 of May, 1878, two of them, Bhawani Shankar and Jwala Prasad, mortgaged their two- thirds share of Katra Gulab Singh in favour of Durga Prasad.

(2.) On the 15 of August, 1879, Sukhdeo Rai sued on his mortgage of the 28th of November, 1877, without impleading Sheikh Abdullah or Durga Prasad, and obtained a decree for sale, in execution of which the mortgaged property, namely, two stables and a house in Katra Gulab Singh, was sold by auction and purchased by Sheikh Abdullah, the subsequent usufructuary mortgagee. On the 12 of October, 1879, Durga Prasad sued on his mortgage of the 30 of May, 1878, without impleading any of the prior mortgagees and got a decree for sale, in execution of which he brought to sale the two-thirds share of his mortgagors in Katra Gulab Singh and purchased it himself.

(3.) The present suit has been filed by the plaintiff (appellant), who is the son of Durga Prasad, for the redemption of the usufructuary mortgage of the 6 of March, 1878, in respect of that two-thirds share. The defendants are the sons of Sheikh Abdullah. One of them disclaimed any interest in the mortgage; the other defendants pleaded that they had spent a considerable amount in the repairs and improvements of the mortgaged property and that a sum of over a lakh and seventy-six thousand was due to them under the mortgage. There were other pleas, too, with which this appeal has no concern.