BABAN MISRA Vs. BISHWANATH PANDE

JUDGEMENT

(1.) This appeal is by the defendants in a suit brought by the reversionary heirs of one Pokhai Pande for possession of land sold by his sister-in-law Mt. Tetri while she held the estate in lieu of maintenance after the death of his widow. The sale of approximately six and a half bighas of land was effected by means of two documents executed in 1922 in favour of defendant 1, who is her nephew. A portion of the land covered by one of these sale deeds, 1 bigha 4 kathas 3 dhurs, had been given in usufructuary mortgage to another person by Pokhai Pande in 1911, the sum secured by the mortgage being Rs. 899.

(2.) This sum and a sum also for redemption of another mortgage which had been executed by Mt. Tetri herself were left with defendant 1, who in 1924 sold the 1 bigha 4 kathas 3 dhurs to defendants 2 and 3 for Rupees 1,203 without having redeemed either of the mortgages. Defendants 2 and 3 redeemed the usufructuary mortgage and obtained possession of the land which they had bought from defendant 1. Separate written statements were put in by defendant 1 and by defendants 2 and 3 and in both the written statements the plaintiffs claim to be the reversioners of Pokhai Pande was denied and it was pleaded that the sales by Mt. Tetri had been for necessity.

(3.) The trial Court decreed the suit and an appeal against the decree was dismissed by the District Judge of Muzaffarpur. This second appeal is by the three defendants, but it is pressed only on behalf of defendants 2 and 3. Mr. Mullick appearing for the appellants did not question the findings of the lower Courts as to the plaintiffs right as reversioners or as to the invalidity of the alienations by Mt. Tetri, but he contended that defendants 2 and 3 are entitled to a refund of the Rs. 899 which they paid to the usufructuary mortgagee. He relied on the decisions of two cases, Mohamed Shumsool Hooda V/s. Shewukram (1874) 22 WR 409 and Jagdeo Sahu V/s. Mahabir Prasad, 1934 Pat 127. In the former case a mortgage subsisting upon an estate at the time of a sale by a widow with only life interest in the estate was afterwards redeemed by the purchaser and the Judicial Committee of the Privy Council held that it was equitable that when the plaintiff claims the estate, credit should be given to the purchaser for the payment of the mortgage which otherwise the plaintiff himself would have had to meet.