BAKHA SINGH Vs. RAM NARAIN SINGH

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the plaintiffs- appellants for the redemption of three mortgages of different dates and comprising some common and some separate properties. The first mortgage was effected by Sakaldip Singh and Ghazi Mal in favour of Naurang Singh and Ujagar Singh on the 10 of June, 1865, and the period fixed for redemption was 8 years. The second mortgage was effected byway of a zaripeshgi lease by Sakaldip Singh, Suba Karan Singh and Prayag Singh on the 19 of February, 1869, in favour of the same mortgagees for a period of 10 years. The third mortgage was made by Binda Singh in favour of the same mortgagees on the 31 of March, 1870,

(2.) On the 26 of July 1869, Sakaldip Singh and Prayag Singh sold their interests in the equity of redemption to Bhawani Din Singh, Thakur Prasad Singh and Dawan Sing and left a portion of the sale consideration for the satisfaction of the first two mortgages. Bhawani Din Singh was the uncle and Thakur Prasad Singh was the nephew of the mortgagees. Dawan Singh is said ho have been the brother of the wife of Ujagar Singh, and it is common ground that his name was fictitiously entered in the sale-dead. Whether the vendees paid the money left with them for the satisfaction of the prior mortgages to the prior mortgagees is not clear. On the 17 of June, 1872, Binda Singh sold his interest is the equity of redemption to Bhawani Din Singh and Thakur Prasad Singh and left a portion of the sale consideration for the payment of the third mortgage above referred to, but whether the vendees paid the money to the prior mortgagees is not clear.

(3.) The plaintiffs claimed to be the legal representatives of Thakur Prasad Singh and as such they sued for the redemption of half the properties sol 1 by the above deeds of sale alleging that the interest of Bhawani Din Singh, the owner of the other half of the equity of redemption had passed to Naurang Singh; the predecessor-in-title of the defendants Nos. 1 to 5 and that Naurang Singh and the defendants Nos. 1 to 5 had in their capacity as the owners of the other half of the equity of redemption got the mortgaged property redeemed from Ujagar Singh or his heirs to the extent of the interest of Ujagar Singh in the said mortgages. The suit was contested by the defendants Nos. 1 to 5 on various grounds. In order to understand the nature of their defence it will be necessary to refer to the pedigree appended to the judgment of the lower Appellate Court, showing that one Subansa Singh had two sons, Pheran Singh and Dayal Singh. Pheran Singh was the father of Naurang Singh and Ujagar Singh the mortgagees. Dayal Singh was the father of Bhawani Din Singh, one of the purchasers of the equity of redemption. Thakur Prasad Singh, the other purchaser was the son of Sarabjit Singh, a brother of Naurang Singh and Ujagar Singh. The defendants Non. 1 to 5 denied that the plaintiffs had any right to sue and pleaded that the name of Ujagar Singh was fictitiously entered in the mortgage deed, that he had never bean in possession of the mortgaged property and that the sale-deed in favour of Thakur Prasad Singh, Bhawani Din Singh and Dawan Singh was similarly fictitious. Their contention really was that Naurang Singh had taken the mortgages in question with his own funds and had got the name of his brother Ujagar Singh fictitiously entered in the deeds, that the real purchaser of the equity of redemption from the original owners was Naurang Singh himself and that neither Thakur Prasad Singh nor Dawan Singh nor Bhawani Din Singh had paid any portion of the consideration or obtained possession of any portion of the property in dispute. In other words they set up Naurang Singh's exclusive title as a mortgagee and then as a vendee and thereafter by reason of his adverse possession for a period of more than 12 years.