MOHAN LAL Vs. PRASADI LAL

JUDGEMENT

(1.) This Is a defendant's appeal arising out of a suit for sale on the basis of a mortgage-deed dated the 21 of September 1910, executed by defendants Nos. 1 and 2 and the father of defendant No. 3, in favour of plaintiff No. 1, the father of plaintiff No. 2, and Mohan Lal, defendant No. 4. The plaintiffs case was that they were entitled to half the mortgage money while Mohan Lal was the owner of the other half, but as Mohan Lal had purchased the entire equity of redemption in execution of a simple money-decree, they sued to recover only half the mortgage- money by sale of the entire mortgaged property. The pleas raised in defence by the contesting defendant Mohan Lal were, (1) that the money was advanced by him alone and he was the sole mortgagee, the other names having been entered only fictitiously, and (2) that in any case the plaintiffs were entitled to sell only half of the mortgaged property.

(2.) The Court of first instance came to the conclusion that the plaintiff had a share in the mortgagee rights, and held that out of the mortgage-money amounting to Rs. 500 the plaintiffs had contributed two sums of Rs. 75 and Rs. 87-8-0 and if gave them a decree for these two sums plus interest, but directed that the amount be realized by sale of the entire mortgagee property. This decree has been affirmed on appeal.

(3.) The defendant has come up in second appeal to this Court and two main points are urged, the first is that the sum Rs. 75 paid by the plaintiffs was included in ?he sum of Rs. 87-8-0 referred to in the written statement. This contention has no force. The sum of Rs. 75 has beer proved, to the satisfaction of both the Courts below to have been paid by the plaintiffs direct to Musamnial Manbhari a previous creditor mentioned in the deed whereas Rs. 87-8-0 is an item which is force to have been paid to Mohan Lai, defendant himself towards the bond in suit.