MT JAGANNATH KUNWAR Vs. JAIPAL

JUDGEMENT

(1.) This appeal has been referred to a Full Bench because of some difficult points of law involved in it. The facts of the case briefly are these: One Gobind Singh owned a two annas 8 pies share in several villages. He had eight sons, namely, Rajpal, Ajit, Ram Ghulam, Din Dayal, Ram Roshan, Harnam, Ahbaran and Kalu. All the sons except Rajpal made a usufructuary mortgage of a two annas four pies share for 15 years with one Har Mangal Singh. Harmangal Singh is now represented by the defendants in the suit out of which this appeal has arisen. The plaintiff, who is respondent 1 in this appeal, has sued to recover the entire property mortgaged except a two pies share which was purchased by the mortgagee, on payment of a proportionate amount of the mortgage money, which was Rs. 600. The plaintiff is the purchaser of 18 2/7 pies and the share is made up in this way: He purchased the shares belonging to the branches of Din Dayal, Ram Roshan, Harnam and Ajit. It appears that Kalu's branch became extinct and the four pies share belonging to Kalu was inherited by the remaining seven branches. Thus the share of each branch was augmented by 4/7 pies. The four branches who sold their shares to the plaintiff thus became entitled to 4x4/7 pies in addition to their original shares. Thus the plaintiff has become entitled to 18 2/7 pies.

(2.) The plaintiff's suit was met with the plea that at different dates, to be presently mentioned, different branches of the mortgagor's family executed certain deeds by way of a further charge and that the plaintiff could not recover the property claimed without payment of the money borrowed by and due on foot of these deeds of further charge. These documents are as follows: (1) Mata Prasad Singh, grandson of Ajit, borrowed Rs. 99 from Harmangal on 16 July 1884 and agreed to pay interest at 2 percent per mensem. The money was repayable, initially on 27 June 1885 and in any case it was to be paid before the mortgage of 1883 was redeemed. (2) Deo Narain Singh, a grandson of Harnam Singh, and Mata Prasad, grandson of Ram Ghulam, mortgaged between them a four pies share to Harmangal for Rs. 85 on 6 September 1884 and agreed as to payment in almost similar terms to those agreed to by Mata Prasad in document No. 1. (3) Bishnath and Jageshar Singh, sons of Ram Roshan, borrowed Rs. 85 from Harmangal on 11 April 1885 on terms similar to the documents Nos. 1 and 2 (4) Sheo Kumar Singh, son of Kalu Singh, borrowed Rs. 50 from Harmangal on 4th September 1885 on terms similar to the terms of the bonds Nos. 1, 2 and 3. The point that was seriously considered in the Courts below was whether these four deeds created any charge on the properties mortgaged in 1883 and therefore the moneys due on these bonds were repayable at the time of redemption of the mortgage deed of 1883.

(3.) The Courts below have differed on this point. The learned Munsif was of opinion that documents Nos. 2 and 4 created a charge and documents Nos. 1 and 3 did not. The learned Subordinate Judge held that the documents 1 and 3 did not create a charge, that document No. 4 did create a charge and document No. 2, although it did create a charge, was not operative inasmuch as when the document was executed the integrity of the mortgage had not been broken. The documents have been translated for our benefit and we have perused them. They are more or less in the same language and the important portions of the language used are these: When I redeem my zammdari share in taluka Bibipur...which is mortgaged for Rs. 600 to the aforesaid creditor....I shall first pay this sum of Rs. 99 together with interest and then I shall pay the mortgage money of the zamindari share. Until I pay up this amount I shall not sell or mortgage this mortgaged zamindari.