SETH NANDUSA Vs. NANA

JUDGEMENT

(1.) GRILLE , A.J.C. 1. The plaintiffs brought a suit to foreclose their mortgage executed by defendants 1 to 3 in respect of shares in numerous malik makbuaa plots in Mouza Jamthi. Defendants 5 to 11 were impleaded as being found in possession of the mortgaged property. Defendant 4 was added as a subsequent purchaser subject to the plaintiffs' mortgage. A preliminary decree has been passed but two of the plots have been excluded from the decree on the ground that at the time of the mortgage they were under attachment by the Collector in sale proceedings in execution of another decree. It is in respect of these two plots that an appeal against the preliminary decree for foreclosure is now made.

(2.) A preliminary objection is made on behalf of the defendants-respondents who executed the mortgage, on the ground that their co-defendants have not been cited as respondents and it is contended that they are interested in the result of the appeal and that the case should not be decided unless they are heard. Most of the defendants who were formally impleaded did not attend in the trial Court and the case proceeded ex parte against them. Defendants 5 to 11 are apparently relatives of the defendants who executed the mortgage, although their relationship is not clear. Of these, three filed written statements namely, defendants 7, 8 and 10, and some evidence was adduced on behalf of the latter two. Their contention was that they had separated from defendants 1 to 3 long before the date of the mortgage and these defendants had no right to execute a mortgage in respect of their separate property. The evidence which they led in favour of the partition, which was in respect of two fields, which the parties at no time made any attempt to identify from among the numerous fields which are the subject of the mortgage, has been disbelieved and rightly so, and these defendants have not made any attempt to show which fields they claim to be their own exclusive property. Of the two fields now in dispute one is entirely in possession of the executing defendants and in the other a half share only is subject of the mortgage. In all the fields except five which were mortgaged a one anna share only has been attached and until defendants 8 and 10 show to the contrary, the presumption is irresistible that their share, such as they have is in these latter fields and has not been included in the mortgage. The burden was certainly on defendants 5 to 11 to show that the fields to which they laid a claim were included in the mortgaged property and they have failed to do so.

(3.) IT is admitted that the two malik makbuza fields were, at the time when there was an agreement to mortgage the property under attachment in execution of a decree by Sheolalsa against the defendants. It is also admitted that in order to satisfy this decree the defendants executed a sale deed (Ex. P. 7) in respect of their crops for Rs. 275 in favour of the plaintiffs and that with this money Sheolalsa's decree was satisfied and the property released from attachment. It is not disputed that the mortgage deed, the sale deed, and the satisfaction of Sheolalsa's claim, including payment with the permission of or in the presence of the Collector, all took place on the same day, namely 3rd September 1909. The defendants' contention, however, was that the mortgage-deed was executed before Sheolalsa's claim was actually satisfied, and that the payment of the money in the presenoe of the Collector took place after the mortgage deed had been executed. The plaintiffs claim that the payment took place before. From these facts it is clear that the parties were well aware of the provisions of Schedule 3, Civil P.C., and knew that the mortgage of property which was under attachment in the Collector's proceedings would be invalid. Since the decree in connexion with which the attachment in the Collector's Court arose was satisfied on the same day the mortgage deed was executed, a strong presumption arises that matters were so arranged as to release the property before the mortgage was executed and the burden lies heavily on the defendants who allege that it was otherwise. Two decrees of Sheolalsa were satisfied by this payment of Rs. 275 which was obtained by the sale of crops to the plaintiffs on the same day. The proceedings have been eliminated in due course and the only documentary evidence available is the Collector's register of cases, extracts from which have been filed in Ex. D. 14. These show that final orders in the case were passed on 8th and 9th September respectively. There was a farther date, 15th September, in the column relating to the final order, which would appear to relate to the deposit of the case in the record room.