TOTA RAM Vs. GOURI SHANKAR

JUDGEMENT

(1.) The facts of this case are these. The plaintiff, who is the respondent in this Court, with his brother Shibahai, obtained a us ufructuary mortgage from the ancestors of the appellants on 29 August 1905, On the same date, the mortgagors executed a rent-note, by which they agreed to pay to the mortgagees Rs. 7-12-0 per month as rent of the house mortgaged. Some time later, the mortgagees obtained a simple money decree against the mortgagors. In execution of that decree they attached the interest of the judgment-debtors in the house, viz., a right to redeem. The judgment-debtors objected and said that it was wrong to describe them as mortgagors and that they were the full owners of the house. They added that, they apprehended that if they were described as mere mortgagors, the property might fetch a small value. Notice was given to the decree-holders but they were not present when the application was disposed of. The execution Court held, by decision dated 29 April 1920, that the words " mortgagor's interest" should be expunged. The house, however, was never brought to sale. I am told by the parties that some other property of the appellants was sold and that sale satisfied the simple money decree.

(2.) After all these had happened, the suit, out of which this appeal has arisen, was instituted by the respondent for recovery of the rent on foot of the registered rent-note. The suit was decreed by the lower Appellate Court and two points have been urged in appeal.

(3.) The fourth point in the grounds of appeal is that the lower Court was not justified in coming to the conclusion that the mortgage-deed of 1905 and the rent- note were not mere colourable transactions but were substantial ones. Mr. Aziz, however, conceded that the plea could not be urged as it went counter to the finding of the lower Appellate Court.