MULCHAND Vs. RADHAKISAN

JUDGEMENT

(1.) THE appellants were Defendants Nos. 3 and 4 in the Court below. They were impleaded as parties to the suit based upon a mortgage dated 20th March 1911 (Exhibit P-4) executed in favour of one Gulabchand, the father of Plaintiffs-respondents Nos. 1 to 3 by one Raghu, son of Bhagu, and his mother Jasoda, for a consideration of Rs. 3,000 with a condition of foreclosure. Raghu died before this suit which was instituted on 28-8-1922 leaving Sitia, Defendant No. 1, minor son, as his legal representative. Jasoda is Defendant No. 2. They are Respondents Nos. 4 and 5 in this appeal. Appellants-defendants Nos. 3 and 4's interest is described in the plaint as being that of subsequent purchasers of the mortgaged malik makbuza field as per sale deed dated 2nd July 1914 and that the Defendant No. 3 is also described as a subsequent purchaser of the mortgaged houses as per sale deed dated 8th June 1914. Respondent No. 6 Harprarsad was impleaded as Defendant No. 5 in the lower Court in his capacity of a subsequent mortgagee of the mortgaged malik makbuza land as per mortgage deed dated 13th June 1914 (Exhibit D-3). Respondent No. 7 Shamal who was impleaded as Defendant No. 6 is the minor son of Ramchandra Kalal who had taken a subsequent mortgage dated 4th March 1914 of the houses covered by the mortgage in suit. Respondent No. 8 Shanker was Defendant No. 7 and was impleaded as subsequent purchaser of the mortgaged mango trees, as par sale deed dated 22nd May 1914 and Respondent No. 9, who was Defendant No. 8 in the Court below, was similarly impleaded as the purchaser of the same mango trees as par sale deed dated 9th May 1914. The amount due to the plaintiffs on the basis of their mortgage dated 20th March 1911 (Exhibit P. 4) was Rs. 10,987-6-0 at the date of suit. Plain-tiffs asked for a decree for foreclosure of the mortgaged property as against all these defendants.

(2.) SITIA being a minor his mother Yenibai has put in a written statement denying all knowledge of the transaction in suit. Defendant No. 2 remained absent and the case proceeded ex parte against her. Defendant No. 4 denied the plaintiffs' mortgage and its consideration and valid attestation. He admitted that he and Defendant No. 3 purchased the malik makbuza field in suit as per sale dated 2nd July 1914 (Exhibit D-l) and that the same was in their possession from the date of the said purchase. He however asserted that the deceased mortgagor Raghu had mortgaged the malik makbuza field to Ramchandra, the deceased father of Shamlal, under a mortgage deed dated 2nd July 1908 (Exhibit D-2) for Rs. 1,500, and that the same was payable on 28th November 1908. That the said Ramchandra had also taken another mortgage dated 4th March 1914 (Exhibit D-4) in respect of the houses covered by the mortgage in suit. He pleaded that after the purchase of the malik makbuza field by himself and Defendant No. 3 they fully satisfied 'the mortgages in favour of Ramchandra and Harprasad by payment of Rs. 6,400 in redemption of the mortgage dated 2nd July (Exhibit; D-2) to Ramchandra and of Rs. 3,600 to Harprasad to redeem his mortgage dated 13th June 1914 (Exhibit D-3); each of these mortgagees Ramchandra and Harprasad are said to have passed receipts dated 8th May 19L5 (Exhibits D-5 and D-6) in favour of Defendants 3 and 4 who are appellants before me. He therefore contended that he and Defendant No. 3 ware entitled to claim prior mortgagee rights over the plaintiffs and entitled to use the mortgage dated 2nd July 1908 as a shield against the' plaintiff's mortgage in case it be proved in the suit. A sum of Rs. 16,350 was claimed on the basis of the mortgage dated 2nd July 1908, and it was urged that the plain-tiffs were not entitled to foreclose mortgaged property and acquire the possession over it even if they proved their mortgage unless they paid the amount due under the prior mortgage dated 2nd July 1908 (Exhibit D-2). I am not concerned with the defence Of Defendants Nos. 7 and 8, but it is necessary to note the defence put in by Defendant No. 6'a guardian through Mr. Ghate, pleader. He denied the execution of the plaintiffs' mortgage, its consideration and valid attestation. He admitted that he held the mortgage deed executed in his father's favour (Exhibit D-4) in respect of a house. It was also alleged that it appeared that his father held another mortgage dated 2nd July 1908 to which reference was made in the mortgage deed (Exhibit D-4). He urged that a decree for the sale of the mortgaged property be passed (evidently in lieu of foreclosure decree) in case plaintiffs' mortgage be proved. It was also added that the house property mortgaged with him was covered by the mortgage sued upon. Mr. Ghate further added that Defendant 6 did not then possess the mortgage deed dated 2nd July 1908 and presumed that the mortgage was probably redeemed.

(3.) ISSUES were framed amongst which the following are material to this appeal: * * * * 2. Whether Raghu had executed the mortgage deed dated 2nd July 1908 in favour of Ramchand, father of Defendant No. 6 ? (a) Was it validly attested and for consideration ? (b) Whether Raghu was a minor on 2nd July 1903 and so the alleged prior mortgage of that date was void ? 3. Whether the Defendants Nos. 3 and 4 paid that sum of Rs. 6,400 to Ramchand on 8th May 1915 and redeemed the mortgage dated 2nd July 1908. If so, whether the Defendants Nos. 3 and 4 are entitled to hold the mortgage of 1908 as a shield against the plaintiffs' claim. 4. What amount is legally due on the mortgage dated 2nd July 1908.