RUP NARAIN SINGH Vs. HAR GOPAL TEWARI

JUDGEMENT

(1.) This appeal arises out of a suit for sale on a mortgage, dated 5 September 1924. The mortgage-deed was executed by Ramnaresh Singh, defendant 1, and his sons Brijnandan Singh and Lahiri Singh who were arrayed as defendants 2 and 3 in the suit. Mt. Munno Kuari, the mother of Ramnaresh Singh, also joined in the execution of the mortgage-deed and she was impleaded as defendant 4. She however died during the pendency of the suit and is not a party to the present appeal. The mortgage deed was for a sum of Rs. 1,551. Out of this amount a sum of Rupees 857-5-2 was borrowed by the mortgagors for discharging a simple money decree against Ramnaresh Singh and for the payment of Government revenue. The property mortgaged originally belonged to Mt. Munno Kuari but before the date of the mortgage Mt. Munno Kuari had transferred that property by gift to Ramnaresh Singh. Therefore the property on the date of the mortgage was owned by Ramnaresh Singh. The mortgage was in favour of the father of the plaintiffs-respondents, and it is not disputed that the plaintiffs have succeeded to the rights of the mortgagee.

(2.) Rup Narain Singh, a nephew, and Lachhmi Narain Singh, a brother of Ramnaresh Singh, were also arrayed as defendants to the suit on the allegation that they were subsequent transferees of a portion of the mortgaged property. It is common ground that before the execution of the mortgage-deed Ramnaresh Singh had been adjudicated an insolvent and was an undischarged insolvent on the date of the mortgage. It is further admitted that an order of discharge was passed on 14 February 1928, and on the date of the institution of the suit giving rise to the present appeal Ramnaresh was no longer an insolvent. The suit was not contested by the executants of the mortgage-deed. Rup Narain and Lachhmi Narain contested the suit inter alia on the ground that the mortgage-deed, having been executed by Ramnaresh when he was an insolvent, was void and unenforceable. They further denied the allegation of the plaintiffs that they were subsequent transferees of the mortgaged property.

(3.) The trial Court held that Ramnaresh being an undischarged insolvent on the date of the mortgage "had no right to deal with the property and the hypothecation of the same was invalid." It also held that Rup Narain. was not proved to be a subsequent transferee of the mortgaged property but that Lachhmi Narain was subsequent transferee of a portion of the mortgaged property. But in view of its finding that the mortgage was invalid it refused to pass a decree for sale of any portion of the mortgaged property and accordingly dismissed the claim against Rup Narain and Lachhmi Narain. It however passed a simple money decree against the executants of the mortgage-deed, as the claim was brought within six years of the accrual of the cause of action.