RAMCHARITAR SAO Vs. BAWAN PRASAD SINGH

JUDGEMENT

(1.) This appeal is by defendants, and arises out of a suit for redemption of a usufructuary mortgage (ijara). The plaintiffs-respondents and their ancestor Madho Prasad Singh owned the 16 annaa milkiat interest in Mouza Gangapore Pakri alias Barhibigha, Tauzi No. 12769, in the Patna District. On 22 July, 1925, they executed an ijara of the 16 annas in favour of the appellants Ramcharitar Sao and Ram Chander Sao for nine years, 1388 to 1841 Fasli (1926 to 1934), the mortgage being for a sum of Rs. 17,000 and there being the usual provision that the mortgagees would enjoy the usufruct in lieu of interest. The bond was executed, according to the plaintiffs, for payment of a sum of Rs. 13,000 to one Deo Narain Singh and Rs. 4000 to one Ram Narain Singh who had transferred to the plaintiffs his 3 annas share of the milkiat. The bond was duly registered, and the plaintiffs admitted before the Sub-Registrar the receipt of the Rs. 4000, but not of the Rs. 13,000 which was subsequently, admittedly paid to Deo Narain Singh and a receipt was taken.

(2.) The plaintiffs brought the suit on the allegation that in fact the Rs. 4000 was never paid. The defendants, therefore, enjoyed the possession of a proportionate share of the property to which they were not entitled, and the usufruct of this share amounted to a sum sufficient to discharge the entire mortgage and to leave a sum of Rs. 158 due ?to the plaintiffs, which they also claimed.

(3.) The defence was, first, that the whole consideration including the Rupees 4000 had been paid. Admittedly, Rs. 13,000 was paid to Deo Narain Singh on 27th August 1925, and the receipt (Ex. M) was taken. As for ?the Rs. 4000 that was brought to the registration office with a view to making the payment in the presence of the Sub-Registrar; the latter said he could not spare time for the money to be counted in his presence. It was, therefore, counted and made over in his verandah, and he subsequently endorsed the receipt written out by the plaintiffs upon the bond.