LAWS(PVC)-1934-6-64

GANESHRAO Vs. MADHORAO

Decided On June 27, 1934
Ganeshrao Appellant
V/S
MADHORAO Respondents

JUDGEMENT

(1.) 1. On 17th March 1924 Madhorao mortgaged a 3/4ths share in his occupancy field No. 27/1 in Mouza Andori in the Tahsil and District of Wardha to Ganeshrao as security for a loan of Rs. 1,500. In default of repayment with compound interest at 2 per cent per mensem by 10th March 1925 the field was to be foreclosed. On 25th March 1925 Madhorao gave notice to his landlord Kesho Under Section 6, Central Provinces Tenancy Act, that he proposed to sell 8 acres out of this field, of which the total area was 17.13 acres, to Nil-kanth for Rs. 2,040. Kesheo accordingly applied to a revenue officer under Sub-section 4(a), Section 6 to fix the value of these 8 acres. It was not disclosed before the revenue officer that the field had been mortgaged and no notice was issued to the mortgagee. Madhorao failed to appear before the revenue officer, and on 5th September 1925 the revenue officer made an ex parte valuation of Rs. 1,000. This was deposited in the revenue Court by Kesheo and withdrawn by Madhorao.

(2.) THE suit giving rise to this appeal was instituted by the mortgagee on foot of his mortgage to foreclose the field. The lower Courts have held that Under Section 6(5), Tenancy Act, the 8 acres sold to the landlord are exempt from the mortgage claim and have held that Madhorao is personally liable for Rupees 934-4-0, which represents the share of, the principal secured on the 8 acres, together with simple interest at 2 per cent per mensem, and that 4.56 acres shall be foreclosed in default of payment of the remainder of the principal, Rs. 565-12-0, together with simple in-terest at 2 per cent per mensem. A 3/4ths share of 17.13 acres is 12.58 acres, but since the mortgage survey, No. 27/1 has been divided into No. 27/1-ka, area 12.56 acres, and 27/l-,kha, area 4.57 acres, the 4.56 acres, which appears in the decree, is presumably a mistake for 4.57 acres.

(3.) I do not see that this involves any particular hardship on the landlord, for it is a usual precaution to ascertain whether property is mortgaged before purchasing it, and in this case it has been conceded that the landlord knew that it had been mortgaged. In Civil Suit No. 214 of 1924 brought by Madhorao's mother for possession of a portion of survey No. 27/1, which ended in a compromise, Ganeshrao released 2.85 acres out of the 12.85 acres mortgaged to him so as to afford her means of maintenance. I agree with the lower Courts that this relinquishment was made purely for the benefit of Madho-rao's mother and was intended to last only for her lifetime. As she is now dead, Madhorao is not entitled to claim that these 2.85 acres are exempt from the mortgage. The cross-objection therefore on this point must fail and is dismissed with costs. The result is that the appeal is allowed with costs, and there will be a preliminary decree for foreclosure of the mortgaged property, 12.85 acres in survey No. 27/l. Simple interest at 2 per cent per mensem, which is the rate allowed by the lower Courts, will be calculated from the date of the mortgage up to the date allowed for payment, which I fix at 26th September 1934. The plaintiff is allowed costs throughout.