CHOTEY LAL Vs. SUDERSHAN LAL

JUDGEMENT

(1.) Letters Patent Appeal No. 24 of 1935 is a plaintiff's appeal arising out of a suit for a declaration of title and for recovery of possession of half share in a shop. This shop had belonged to Bijai and Sri Gopal in equal shares. In 1917 Bijai mortgaged his half-share in this shop along with his share in another house to one Gulzari Lal, who sold his mortgagee rights to Babu Earn. On 12 August 1918, Bijai first executed a sale-deed of his half share in the shop in favour of the present plaintiff, but declined to get it registered. On 15 August 1918, on the other hand, he executed a sale-deed of the same half share in favour of the defendant, Sri Gopal, and presented it for registration on 20 August 1918. The present plaintiff then applied before the District Registrar for compulsory registration of his sale-deed which was registered on 29 November 1918. Money had been (sic) in the hands of the plaintiff and also in the hands of Sri Gopal for payment of the earlier mortgage of 1917. In 1919 both these vendees appear to have deposited the mortgage money under Section 83 of the old T.P. Act, but the mortgagee took out the amount deposited by Sri Gopal. Sri Gopal had thus paid Rs. 440 in discharge of the prior mortgage of 1917. The plaintiff on the other hand took out the money which he had deposited to the credit of the mortgagee. Later on Sri Gopal redeemed another usufructuary mortgage which was for Rs. 300 and has remained in possession since.

(2.) In the present suit it has now been found by the lower appellate Court that the defendant was aware of the previous contract in favour of the plaintiff and that accordingly the sale-deed in favour of the plaintiff, though registered subsequently, must prevail as against the sale-deed in favour of the defendant and the plaintiff's title to the property must be conceded. The defendant had also pleaded that the plaintiff should not be given a decree for possession unless and until he paid the amounts which the defendant had paid in discharge of the two earlier mortgages. So far as the discharge of the usufructuary mortgage is concerned, there can be no doubt that the defendant is entitled to recover that amount. He could not obtain possession by virtue merely of the sale-deed taken from the vendor but got possession when he redeemed the usufructuary mortgage. He is certainly entitled to hold up this mortgage money as a shield and cannot be ousted unless and until he has been redeemed. Indeed this part of the decree has not been challenged before us.

(3.) The difficulty arises as regards the claim of the defendant to be reimbursed on account of the payment made by him in discharge of the earlier mortgage of 1917. It may seem fair that the defendant who has freed the property from this earlier liability should be allowed to recoup himself, particularly as the plaintiff had undertaken in his sale-deed to discharge this earlier mortgage. There was accordingly an obligation on the plaintiff to discharge this mortgage and the defendant has in fact discharged it. If the suit had been brought within three years of the payment made by the defendant we would have felt no difficulty because under Section 69, Contract Act, the defendant would have been entitled to be recouped, and we would have put the plaintiff on terms. The difficulty in the present case is created by the circumstance that the suit was brought more than six years after the payment but within 12 years of the mortgage and of the date when the mortgage money had fallen due, the date fixed in the mortgage deed being two years. The question which arose in this case was whether a person who has purchased property from the vendor under a deed which has to be set aside and who has discharged a prior simple mortgage is entitled to use such payment as a shield and resist the plaintiff's claim for possession until he has been paid such amount.