RAM SINGH Vs. BALDEO PRASAD

JUDGEMENT

(1.) This is an appeal by some of the defendants in a suit for redemption of a mortgage and is directed against a judgment of this Court under Section 10, Letters Patent. One Parmanand Lal possessed an occupancy holding in Mauza Bhaipur Kalan, Pargana Bhulli, in the District of Mirzapur which consisted of 27 plots comprising an area of 15 bighas 10 biswas. On 26 June 1885 he executed a usufructuary mortgage of the entire holding in favour of Udit Singh for Rs. 175. Later on Parmanand Lal executed another usufructuary mortgage of the identical plots in favour of one Bhagwan Lal for Rs. 1,475 on 21 January 1901, and left Rs. 175 with the mortgagee for payment to Udit Singh under the earlier mortgage. It was stipulated in this document that this mortgage was to remain in force for 59 years. On 29 April 1904 Bhagwan Lal sold his mortgagee rights to Mukutdhari Lal, son of Udit Singh, for Rs. 499. Mukutdhari Lal was the father of defendants 1 to 3 and grandfather of defendants 4 and 5. On 11 March 1924 the sons of Mukutdhari Lal made a sub-mortgage in favour of defendants 6 to 9. No effect appears to have been given to this sub-mortgage, and on 8 May 1926, they sold the mortgagee rights under the document, dated 29 April 1904, to defendants 6 to 14. On 10 January 1927 the suit which has given rise to this appeal was instituted by Jwala Prasad, Baldeo Prasad, Bameshwar Prasad and Ohaturbhuj for redeeming the mortgage, dated 26 June 1885, on payment of Rs. 175. The plaintiffs claimed to be the heirs of Parmanand Lal. The following genealogical tabla will elucidate the relationship:

(2.) Plaintiffs alleged that Parmanand Lal died 29 or 30 years before suit, that Rajpal and Gokul Prasad were alive at the time of his death, that the equity of redemption was inherited by his brothers and that it devolved subsequently upon the four plaintiffs. They further alleged that the usufructuary mortgage bond,, dated 21 January 1901, was collusive, fictitious and without consideration. They also impugned the deed of assignment, dated 29 April 1904 on the same grounds. In 1922, Rani Surajpal Kaur, zamindarni of Mauza Bhulli Kalan, had instituted a suit in the Revenue Court against the present plaintiffs and defendants 1 to 5 for possession of the occupancy holding. This was Suit No. 543 of 1922. The Rani alleged that Parmanand Lal had died without leaving any heirs and that the occupancy holding had lapsed to her as the zamindarni. The present plaintiffs did not contest the suit. The other defendants, who were the successors-in-interest of Udit Singh, in their written statement dated 11 July 1923, resisted the suit on the ground that Parmanand Lal had not, died without leaving any issue, that defendants 1 to 5 were his heirs and that the occupancy holding had not lapsed to the zamindarni. These pleas found favour with the Revenue Court, which dismissed the suit on 28 September 1923. Since the dismissal of the suit, defendants 1 to 5 and their transferees have continued to remain in possession of the occupancy holding. Plaintiffs contended that they were entitled to redeem the mortgage as they were the heirs of Parmanand Lal under the personal law and had an interest in the holding under Section 91(a), T.P, Act, that the finding in Suit No. 543 of 1922 that Baldeo Prasad and others were the occupancy tenants of the holding by right of succession to Parmanand Lal operated as res judicata and that the defendants were estopped under Section 115, Evidence Act, from disputing the title of the plaintiffs to redeem.

(3.) The suit was directed against 14 defendants, defendants 1 to 5 were the grandsons and great-grandsons of Udit Singh, the original mortgagee, defendants 6 to 14 were the puisne transferees in possession. The suit was contested by defendants 6 to 9 and by defendants 12 to 14. They contended that Rajpal was not the brother of the mortgagor, that Parmanand Lal died 13 or 14 years before suit, that Rajpal and Gokul had predeceased him, that the plaintiffs had no interest in the equity of redemption, that the mortgage of 1901 was a genuine transaction supported by consideration and that the mortgage, dated 26 June 1885, had been superseded by the later mortgage, dated 21 January 1901, and that under the last mentioned mortgage, the property was not redeemable before the expiry of 59 years. The Court of first instance dismissed the suit. It came to the following conclusions : (a) Parmanand Lal and Rajpal were own brothers; (b) Rajpal died 20 or 21 years ago; (c) Parmanand Lal died in or about 1324 Fasli; (d) Parmanand Lal had executed the mortgage bond, dated 21 January 1901, but this document and the subsequent document dated 29 April 1904 were not supported by consideration; (e) on the allegation contained in the plaint that Parmanand Lal died 29 or 30 years ago, Rajpal or the plaintiffs did not inherit the holding, having regard to the provisions of Section 9, Act 12 of 1881, as they did not share in the cultivation of the holding along with Parmanand Lal; (f) the judgment in Suit No. 543 of 1922 did not operate as res judicata; and (g) the defendants were not estopped under Section 115, Evidence Act, from denying the title of the plaintiffs to the property in dispute. The lower appellate Court reversed the decision and decreed the suit for redemption. It specifically came to a finding that the mortgage, dated 21 January 1901, was a fictitious document and did not supersede the earlier mortgage dated 26 June 1885. No findings were arrived at as to the time of the death of Parmanand Lal and his brothers or whether the inheritance in the occupancy holding devolved upon the plaintiffs. This is clear from the following extract from the judgment: In my opinion in this case it is not very important to decide when Parmanand Lal died and whether his brothers were alive or not at that time and how the inheritance of Parmanand Lal devolved on his heirs.