SIRDAR SINGH Vs. RATAN LAL

JUDGEMENT

(1.) This case has been referred to a Bench of two Judges, as when it came up before a learned Judge of this Court it was stated that whatever his decision may be an appeal would be preferred under the Letters Patent.

(2.) The question raised in the appeal is, whether the sons who formed a joint Hindu family with their father, can sue to redeem property belonging to the joint family, which has been sold and purchased by the mortgagee at Court sale in a decree obtained against the father in a suit on the mortgage bond given by the father, when the security of the property was released and a simple money decree asked for and granted. The facts which led to the present appeal and the point under discussion are as follows : The plaintiffs-appellants and their father, Nandan Singh, were members of a joint undivided Hindu family. On the 28th September 1893 Nandan Singh alone executed a deed of simple mortgage in favour of one Ratan Lal in lieu of Rs. 99 in respect of some of the joint family property. Ratan Lal brought a suit on foot of his mortgage against Nandan Singh only. He did not implead the sons of the latter and releasing the security of the property asked for a simple money decree which was passed in his favour on September 13, 1898. In execution of his decree Ratan Lal attached the mortgaged property as also some other property of the joint family on November 7, 1898. Both the attached properties were sold on August 22, 1899. Ratan Lal bought the mortgaged property and the other property was purchased by a stranger at the Court sale. On September 26, 1899, the sale in favour of Ratan Lal was confirmed. On the 21st of August 1911 the plaintiffs-appellants, the sons of Nandan Singh, instituted the suit which has given rise to the present appeal in the Court of the Subordinate Judge of Bareilly for redemption of the mortgage of September 28, 1893. They based their claim on the allegations that they and their father were members of a joint undivided Hindu family, that the property sought to be redeemed was joint family property, that they were no parties to the decree of September 13,. 1898, and that the sale to Ratan Lal was voidable in view of Section 99 of Act IV of 1882. They further stated that they had asked Ratan Lal several times out of Court to allow redemption and render an account of the property since his possession as a purchaser but he had declined to accede to their request. The cause of action accrued to the plaintiffs on August 1, 1911,. the date of the last refusal of Ratan Lal and, therefore, they sued for redemption of the mortgage of September 28, 1893, on the payment of Rs. 158 or whatever sum the Court found due and for mesne profits on a rendition of accounts by Ratan Lal since his possession over the property. Ratan Lal resisted the claim on various pleas. He said that there was no subsisting mortgage capable of redemption, that the sale in his favour was valid, that it could not be impeached after confirmation, that Section 99 of Act IV of 1882 was inapplicable, that there was a prior mortgage in favour of a third party which should also be paid off and that a much larger sum than that offered by the plaintiffs was due on the mortgage of September 28, 1893. The learned Subordinate Judge found against the plaintiffs on the ground that their father being the karta of the family executed the mortgage of September 28, 1893, in his representative capacity and the decree of Ratan Lal was passed against him in that capacity and as he, Nandan Singh, had not objected to sale and allowed it to be confirmed he must be taken to have waived his rights. The plaintiffs have come up in second appeal to this Court. They contend that the learned Additional Judge did not appreciate the real issue in the case and misapplied the law of waiver or estoppel.

(3.) The fact that the mortgage was given by Nandan Singh or that the decree was passed against him in his capacity as karta of the family does not affect the merits of the present case, nor does his silence in the execution proceedings of 1899 amount to a waiver or estop his sons from bringing the present suit for redemption. The real issue in the case is not the status of Nandan Singh or the effect of his silence in the execu(SIC) proceedings of 1899, but whether a mortgagee can, by obtaining a money decree for a mortgage debt and purchasing the equity of redemption in execution of that decree, relieve himself of his obligations as mortgagee and deprive the mortgagor of his right to redeem. It is argued for the plaintiffs-appellants that the mortgagee cannot do so in view of the provisions of Section 99 of Act IV of 1882. In support of his contention the learned Counsel for the plaintiffs-appellants relies on the following cases : Mayan Pathuti v. Pakuran 22 M. 347 : 9 M.L.J. 98., Martand Balkrishna Bhat v. Dhondo Damodar Kulkarni 22 B. 624., Pancham Lal Chowdhury v. Kishun Pershad Misser 6 Ind. Cas. 47 : 14 C.W.N. 579 at p. 583 : 12 C.L.J. 574, Khiarajmal v. Daim 32 C. 296 : 9 C.W.N. 201 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom.L.R. 1 : 32 I.A. 23 (P.C.).