JAGDEO SAHU Vs. MAHABIR PRASAD

JUDGEMENT

(1.) The only question in this appeal is whether the plaintiff as a condition of his obtaining possession should pay to the principal defendant a sum of Rs. 14,000 which sum was deposited by the defendant in Court under Section 83, T.P. Act, paying off a mortgage dated 18 April 1898, entered into by one Mahtha Gauri Charan, the husband of the lady who sold the property to the defendant, which sale was challenged in this suit. The action was by the next reversioners after the death of one Mt. Sona Kuar, the vendor, who died on 6 June 1916. Mahtha Gauri Charan her husband, gave a 12 annas interest of the village Basora together with 1 annaijardar interest in the same village in thika on 21 April 1893, for a term ending 1902 to Rameshi Singh. Then on 18 April 1898, he gave a mortgage by Conditional sale with possession of the same interest to the same person with the stipulation that Rameshi Singh the mortgagee would be entitled to foreclose on failure of the mortgagor to repay the advance of Rs. 14,000 by 9 June 1922. In the next year, that is 1898 Gauri Charan died leaving his widow Mt. Sona Kuar. On 14 December 1906, the widow sold the 12 annas interest in that mauza to the defendant for a sum of Rs. 14,451 which sale has been set aside by the learned Subordinate Judge in the Court below as not being for justifying legal necessity.

(2.) Of the consideration of Rs. 14,451, Rs. 451 only was paid in cash, the Rs. 14,000 being retained by the mortgagee under the express condition that he should pay off the mortgage of 18 April 1898. On 6 June 1916, as I have said, the widow died. Plaintiff 2 brought this action as the next reversionary heir, plaintiff 1 being the purchaser of a 7 annas interest. The sum of Rs. 14,000 retained by the principal defendant for the payment of the mortgage was deposited under Section 83, T.P. Act. On 5 June 1922, notice was given to the mortgagee and the defendant obtained possession of the property. On 5 April 1928 this suit was commenced within the period of limitation.

(3.) No question is raised in this Court as regards the validity of the sale. That has been decided in favour of the plaintiffs and the only question the defendant raises in this appeal is whether the plaintiff should be put on terms of paying the Rs. 14,000 deposited, as I have stated, by the defendant. It should appear that the Subordinate Judge decided this question in favour of the defendant on this point in these terms: Therefore, I am of opinion that defendants have successfully shown that full consideration had passed under the baibulwafa deed, Ex. E, and therefore they were obliged to deposit this sum under Section 83, T.P. Act, to the credit of the baibulwafadar, in order to discharge the encumbrance upon 12 annas of mauza Basora which was purchased by virtue of the sale-deed in question. In an earlier issue, which he decided in favour of the plaintiff, he has stated that the relief which the defendants claim would be an equitable relief which could be granted to them as being a charge upon the property, which the plaintiffs would be held liable to redeem in getting the reliefs for possession.