RAM KISHORE PANDE Vs. JAGARNATH RAI

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption of a mortgage The mortgage was of a raiyati holding and it was taken by the appellant from a woman named Musammat Murata Kuer acting on behalf of her minor son. The appellant was to redeem a prior mortgage and undertook liability to pay the rent of the holding, but be neither redeemed the mortgage nor paid the rent and when the holding was sold for arrears of rent, including the rent for two years prior to the mortgage, he bought it in the name of another person. After her son's death Musammat Murata Kuer surrendered the property to her son's gotias. These gotias are the plaintiffs in the suit. It has been held by both the Courts below that as it was in consequence of a wrong done by the appellant that the holding was sold, the sale was not a bar to redemption of the mortgage.

(2.) IT is contended on behalf of the appellant that he has been unlawfully penalized for default made by the prior mortgagee, the appellant having been under no obligation to pay the rent which accrued due before he obtained his own mortgage. The fact, however, that another person, who was not the mortgagor, shared responsibility with him for a wrongful omission would not in the circumstances of the case give him a right to derive benefit from the omission at the expense of mortgagor. The only other ground taken in the appeal is with regard to a plea which the appellant took in the suit that the sale had been acknowledged by Musammat Mural a Kuer and, therefore, it could not be repudiated by the respondents. IT appears that she received the money which I he appellant paid for the property. A certified copy of a registered receipt purporting to have been granted by her was exhibited in the trial Court as the original was stated to have been lost, but the original was produced in the lower Appellate Court after the appeal had been heard. IT is objected that there is no reference to it in the judgment. The reason why it was not mentioned seems to be that nothing depended upon it for the Munsif had assumed that the copy exhibited was a copy of a genuine document. He attached no weight to it, not because he doubted whether Musammat Murata Kuer had acknowledged receipt of the money but because he found that she was completely under the appellant's influence. The statement in the judgment of the lower Appellate Court of the grounds on which the appeal was pressed shows that this finding was not challenged. The appeal is accordingly dismissed with costs.