MOHINI MOHAN MISRA Vs. SRIMATI SARAT SUNDARI DEBI

JUDGEMENT

(1.) The plaintiffs prefer this appeal. They say that they are the successors-in-interest of one Nanda Lal Surma Roy, who in March 1830 received a sum of Rs. 11,000-0-0 from Kali Prosad Sarma Roy and in consideration therefor executed in his favour a deed of conveyance in regard to the properties in suit. On the same day Kali Prosad executed an Ekrarnama in favour of Nanda Lal by which the latter was given the right to repay the money. Two other documents bearing on the transaction were also executed on the same day.

(2.) In 1859 Nanda Lal's successor brought a suit on the documents he wanted to recover possession of the land on the footing that the principal had been paid off out of the usufruct, and that there was a large sum due to him from Kali Prosad. The first Court decreed the suit finding that the principal had been satisfied and that Rs. 24,000-0-0 were due to the plaintiff. The defendant appealed to this Court: he failed on his main argument, that the transaction contained in the documents did not amount to a mortgage, but he succeeded in the second branch, that is in regard to the mode in which the account was to be made up. The result of this Court's directions as to the manner of making up the account was a finding that a large sum was still due to the defendant, and in consequence the suit was dismissed. The plaintiffs appeal to the Judicial Committee was unsuccessful.

(3.) In the present suit the plaintiffs have given a long account, beginning with the sum due from them as ascertained in the suit of 1859 after the appeal to this Court. This account shows a debt growing steadily until the year 1873, then it shows a substantial increase in the usufruct, which gradually reduces the debit balance until in 1900, the position has changed, with the result that at the date on which the suit was instituted there is a sum of lakh and a quarter due to the mortgagor.