MAHANT RAM KISHAN DAS Vs. BADRI BISHAL

JUDGEMENT

(1.) This appeal is connected with first appeals No. 572 of 1930, No. 90 of 1931 and No. 109 of 1931. We shall dispose of all these appeals by means of this judgment. They all arise out of a suit instituted on 7 September 1929 by Mahant Ram Kishan Das in order to redeem a usufructuary mortgage. This transaction was evidenced by three documents, viz., a lease dated 29 October 1919, a kabuliyat dated 30 October 1919 and an agreement dated 24 November 1919. The lease was executed by Mahant Ram Kishan Das in favour of Badri Bisal, Ajodhya Prasad and Gauri Shankar. It was for a period of ten years from 1327-F to 1336-F. The lessees were to remain in possession of the property and collect profits and were to credit the amounts collected after deducting expenses towards a debt said to be due from Mahant Ram Kishan Das. The kabuliyat was merely a counterpart of this lease. The agreement recited that certain sums of money were due to Bhairon Prasad, Seth Ganpatji and the lessee Ajodhya Prasad. It was agreed that these debts should be paid off by the lessees. Bhairon Prasad was the brother of the lessee Badri Bisal and was with him a member of a joint Hindu family. The sum due to Seth Ganpatji who had nothing to do with the lessees was admittedly never-paid and it is not disputed before us that the three documents to which we have referred were jointly evidence of a usufructuary mortgage under the terms of which Badri Bisal, Bhairon Prasad, Ajodhya Prasad and Gauri Shankar were to take possession of certain villages, collect the profits, meet the expenses and sets aside the balance towards a debt of Rs. 14,000 due to them. Interest on the-debt was 9 per cent, per annum. After the suit for redemption was instituted, the learned Subordinate Judge, Mr. Kanhaiya Lal Nagar, passed a preliminary decree under Order 34, Rule 7, Civil P.C., on 15 November 1930. He directed that the mortgagees should furnish accounts for the years 1327-F to 1336-F and that the plaintiff should also furnish some accounts-and it should be worked out what amount if any, was still due from the plaintiff to the mortgagees.

(2.) We may mention at this stage that a number of defendants were impleaded besides the mortgagees or their representatives in interest. We may refer particularly to two of these, namely, Ram Sewak and Shree Jagannathji. We have already explained that the debt due to Seth Ganpatji was not paid off and the result was that he instituted a suit and obtained a decree. In execution of that decree part of the mortgaged property was put to sale and Ram Sewak purchased the village of Chakaundh and Shree Jagannathji the village of Ludhwara, These two men were impleaded as defendants. The plaintiff alleged that the sale of his property was not competent because he was protected by the provisions of the Bundelkhand Land Alienation Act. The learned Subordinate Judge, when he passed his preliminary decree, decided that he was so protected. This finding has led to the two appeals, No. 90 of 1931 by Ram Sewak and No. 109 of 1931, by Shree Jagannathji.

(3.) It has been admitted in the course of arguments that it was not necessary for the learned Subordinate Judge to decide the questions raised between these two appellants and the plaintiff. We understood that the mortgagees were still in. possession of the property; but even if that was not certain, the plaintiff was entitled to possession as against them if he redeemed the mortgage and it was unnecessary in the suit to raise the question whether he was entitled to possession as against others. It was agreed, therefore, that it was unnecessary to decide the questions raised in these two appeals, viz., No. 90 and No. 109 of 1931. We, therefore, record a finding that the questions between the plaintiff Mahant Ram Kishen Das and the defendants Ram Sewak and Shree Jagannathji are left undecided. We shall dismiss these two appeals and direct in the circumstances that the parties shall pay their own costs in both Courts.