SETH MANAKCHAND Vs. CHAUBE, MANOHARLAL

JUDGEMENT

(1.) The matter for decision on this appeal is whether the respondents are entitled to recover possession from the appellant of a four annas share in a village called Chipabad. The question arises upon an application for the execution of a final decree for foreclosure dated 10 July 1930. The application was made by a tabular statement dated 19 July 1933, by which the respondents who were the plaintiffs in the foreclosure suit asked that a warrant for possession of the four annas share be issued against the appellant. On 6 April 1934, the trial Court (the Additional District Judge of Hoshangabad) ordered that a warrant for possession should issue to eject the appellant, and an appeal from this order was dismissed by the High Court at Nagpur on 24 September 1937, against whose order this appeal is brought.

(2.) The respondents' mortgage is dated 31 May 1919. It was for Rs. 8000 and interest. The mortgagors were one Govindram and his son Rajaram. The dispute between the present parties arises upon the construction of that part of the deed which describes the property and interest in mouza Chipabad which the deed transfers by way of security. According to the appellant's construction of the vernacular words, what Govindram and Rajaram mortgaged, subject to a certain exception as to sir lands, was "our malguzari rights" in a four annas share of Chipabad and another village, called Basantpura. According to the respondents' view what the deed transferred to them as their security was "our rights in the following malguzari mouzas," with the exception as to sir lands. No question now arises as to the other village and Chipabad may be regarded as the only village with which this case is concerned. To explain the difference between "our rights" and "our malguzari rights" it is necessary to make some reference to the title of Govindram and of Rajaram.

(3.) In 1895 the malguzar of Chipabad was one Radhakishan, and by a deed of 13 June 1895, he had mortgaged Chipabad and Basantpura, together with the sir rights to three persons for Rs. 30,000 and interest. Of these three mortgagees, two (Sobhachand and Chogmal) had a half share in the security and one (Ramrao) had the other half. In 1898 these mortgagees had obtained possession. At the time of the respondents' mortgage of 31 May 1919, Rajaram had acquired a four annas interest in Radhakishan's equity of redemption-the other 12 annas having come to be vested in one Partabchand, the appellant's brother. The half interest of Ramrao in the security had passed as to one moiety thereof to Govindram, who thus held a quarter (four annas) interest as mortgagee under the mortgage of 1895: while the other quarter which had belonged to Ramrao had passed to Govindram's brother Ganpat. On these facts the present respondents maintained that by the phrase "our rights in the malguzari mouza" Govindram and Rajaram had mortgaged the former's interest (four annas) in the security of 1895 as well as Rajaram's interest (four annas) in the equity of redemption. The appellant on the other hand contends that by the phrase "our malguzari rights in a four annas share" there was transferred to the respondents only Rajaram's interest in the equity.