HAR CHANDI LAL Vs. SHEORAJ SINGH

JUDGEMENT

(1.) This is an appeal from a decree dated the 25th February, 1913, of the High Court (Allahabad), reversing a decree dated the 8th July, 1911, of the Subordinate Judge of Bareilly. The question is whether the appellants are entitled to enforce a mortgage against the respondents.

(2.) The mortgage in question is dated the 13th November, 1876 and was executed by Jai Chand in favour of Lala Chatri Lal, the mortgaged property being a five-sixths share in the mauza Nagaria Bikrampur. The amount secured was 5,500 rupees. The mortgagor died leaving a widow, Musammat Nandan and a separated nephew, Phul Singh. Under the Hindu law Musammat Nandan had a widow s interest and Phul Singh had a reversion contingent on his surviving her in the property subject to the mortgage. Musammat Nandan could dispose of the property with the concurrence of Phul Singh, but Phul Singh could not, without the concurrence of Musammat Nandan, dispose of the reversion so as to defeat the interests of those who would become entitled if he died in her lifetime.

(3.) Phul Singh was the owner of the remaining one-sixth share in the mauza in question. On the 6th March, 1879 and the 26th September, 1881, he mortgaged his one-sixth in favour of Lala Chatri Lal for 1,000 rupees and 3,000 rupees, respectively, with interest. Obviously, therefore, Lala Chatri Lal had a better security for the 5,500 rupees due on Jai Chand s five- sixths share than he had for the 1,000 rupees and 3,000 rupees due on Phul Singh s one-sixth share. On the 9th September and 30th October, 1887, respectively, Musammat Nandan and Phul Singh, executed or were expressed to execute, two mortgages in favour of Lala Chatri Lal. Each mortgage purported to affect the entire mauza, the first being in respect of the principal and interest due on Jai Chand s mortgage of the 13th November, 1876 and the second being in respect of the principal and interest due on Phul Singh s mortgages of the 6th March, 1879 and the 26th September, 1881. If these mortgages were valid, Lala Chatri Lal would get the security of Jai Chand s property for the indebtedness of Phul Singh and the security of Phul Singh s property for the indebtedness of Jai Chand.