GANPAT Vs. BUDHMAL

JUDGEMENT

(1.) THE suit is based on a mortgage executed on June 2, 1909, by the defendant Abhiman and his two brothers in favour of one Kasturchand. Abhiman's family have parted with all interest in the property and the present members, Defendants Nos. 1 to 3, are merely pro forma parties. The mortgage property consisted of fields bearing Nos. 54 and 70, and a house. On 20th May 1912, the original mortgagors sold field No. 54 to Ganpat, who is Defendant No. 4 in the suit, and appellant in both appellate Courts. He pleads that the, mortgagors redeemed the whole mortgage from the price he paid for Field No. 54 and he is the chief contesting party against the plaintiffs. The other parties are subsequent transferees, whose position.. need not be considered in this suit.

(2.) THE plaintiffs are the heirs of the original mortgagee Kasturchand, being his paternal cousins. When Kasturchand died on 11th March 1911, his estate was in the possession of Mt. Zunkari, the widow of Kasturchand's pre-deceased only son Depchand. She was in full possession of the property when Abhiman and his brothers, the original mortgagors, sold Field No. 54 to Ganpat, and on the day of the sale, 20th May 1912, the amount due on the mortgage, Rs. 2,400, was duly paid over to Mt. Zunkari, in the presence of the officer who registered the sale-deed.

(3.) ACCORDING to the terms of the mortgage the principal amount of Rs. 1,500 was repayable in five instalments of Rs. 300 beginning on 15th January 1910, and the whole amount was to become payable on default of two instalments. As the plaintiffs plead that no payment was made, their cause of action arose on 16th January 1911. They filed the present suit on 15th January 1923 the last available date.