LALA SONI RAM Vs. KANHAIYA LAL

JUDGEMENT

(1.) The suit in which this appeal has arisen was brought on the 4th March 1907 by Lala Soni Ram the appellant here for the redemption of a mortgage which had been made on 2nd January 1842 by the then owners of Mauza Kheria Buzurg in favour of Khushwakt Rai, who was on the making of the mortgage put in possession by the mortgagors. The mortgage was usufructuary, the profits except Rs. 80 per annum were to be taken by the mortgagee in lieu of interest and the mortgagee was to pay to the mortgagors annually the Rs. 80 as malikana.

(2.) By the mortgage it was provided that the mortgagors should be entitled to redeem and to obtain possession of the mortgaged property on payment of Rs. 4,000, which was the amount advanced to them. No date for the redemption of the mortgage was specified, and consequently the mortgage became liable to be redeemed immediately after it was made. The whole 20 biswanis of Kheria Buzurg were included in the mortgage, but the original mortgagors or some of them redeemed the mortgage so far as it affected 6 biswas 17 1/2 biswas of Kheria Buzurg, and this suit relates to the right to redeem the mortgage so far as it affects the remaining 13 biswas 2 1/2 biswas of the property which was mortgaged in 1842, if that right could at the date of the suit have been enforced by suit.

(3.) In order to understand the issues which were raised and were tried in the Court of first instance, or on appeal below, it is necessary briefly to refer to the title of Lala Soni Ram, the plaintiff-appellant, as representing the original mortgagors and to the title of the defendants-respondents as representing the original mortgagee Khushwakt Rai, and to refer to a suit which was brought on the 18th May 1904 by the present defendant-respondent - Babu Charan Behari Lal, and his brother Lala Shib Shankar Lal against the present plaintiff-appellant, Lala Soni Ram. Lala Shib Shankar Lal was a defendant to this suit and is represented here by the respondents to this appeal.