LALLU SINGH Vs. RAGHUNANDAN

JUDGEMENT

(1.) This appeal raised somewhat important questions of law. The plaintiffs are the Respondents Nos. 1-4. The remaining respondents were more or less fro forma defendants in the suit, out of which this appeal has arisen. The principal defendants are the appellants. Plaintiff sued for redemption of a mortgage made in 1889, which was supplemented by a mortgage of 24 July 1895. The total mortgage-money for the two mortgages is a sum of Rs. 100. The original mortgagors were two persons Sahai and Jokhu. Sahai's line is extinct. The plaintiffs are the son and grandson of Jokhu. The mortgage was made in favour of one Shiv Kumar, whose son and grandsons are the defendants Nos. 1 to 3.

(2.) Various defences were raised. It has been found by the Court below that the plaintiffs are entitled to redeem, but the appellants are entitled to cut away the trees that they have planted after the, mortgage. The defendants contended that they being the zamindars, the tenancy which was mortgaged has lapsed to them and that no right of redemption is left. For the respondents it is contended that the trees should be handed over with the land. Taking the respondent's case first, it seems clear that the mortgagees were entitled to make any use they liked of the land they bad in their possession. If they grew any crop they could cut it away before handing over the land. Similarly, if they planted any trees, they would be entitled to remove the trees before handing over the land to the plaintiffs. The cross-objection, therefore, has no force.

(3.) Coming to the defendants appeal the facts seem to be these. Jokhu and Sahai were the original mortgagors, and Sahai's line is extinct. It appears that in 1915, Jokhu's sons, Raghunandan and Rama, took forcible possession of the lands from the mortgagee. The mortgagee, Shiv Kumar, brought a suit for possession. The defendants, Raghunandan and Rama, being sons of Jokhu, thought it best to raise a plea of want of legal necessity for the mortgages. The case was heard by a learned Munsif and he framed the following issue among others: Is the mortgage, dated 1889 genuine? "What was the necessity for which it was made?