(SHAH) RAM CHAND Vs. PTPARBU DAYAL

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for redemption. The plaint as originally framed has been amended, and in the end the plaintiff sought the redemption of certain village which he had bought upon payment to a mortgagee of the sum of Rs. 12,894. The defendants demanded a sum of Rs. 59,500. The lower appellate Court has decreed the suit on condition that the plaintiff pay to the defendants the sum of Rs. 30,000. The property which the plaintiff seeks to redeem, is the village of Matamai in the district of Agra. One Nawal Singh was the owner of this village and six others, namely, 2 Sherpur, 3 Salempur, 4 Phulaichi, 5 Undhi, 6 Matsena and 7 Larhupur Chakarpur. On 6 January 1882, Nawal Singh mortgaged villages 1, 2, 3 and 4 to Bast Ram and Ram Kishan for the sum of Rs. 25,000. On 13th January 1893, Nawal Singh mortgaged villages Nos. 1 and 7 to the ancestor of the plaintiff for the sum of Rs. 10,000. On 24 June 1893, Nawal Singh mortgaged villages Nos. 1, 2, 3, 4 and 5 to Bast Ram and Ghasi Ram, son of Ram Kishan. Bast Ram and Ram Kishan were the mortgagees under the mortgage of 6th January 1882. The mortgage consideration under the mortgage of 24 June 1893 was Rs. 40,000. Rs. 27,000 of this represented the amount due by the mortgagor to the mortgagees under the mortgage of 6 January 1882.

(2.) Nawal Singh died in the year 1896 leaving a widow. His widow died in the year 1800. Nawal Singh's heirs on the death of the widow were Fateh Singh, defendant 5, and Tej Singh, the father of defendant 6. Fateh Singh and Tej Singh were nephews of Nawal Singh. On 31 March 1905, Fateh Singh and Tej Singh executed a usufructuary mortgage in favour of Ghasi Ram of the villages 1,4, 5 and 6 for the sum of Rs. 1,03,200. On 31 March 1905, Rs. 68,097-3-10 were due under the mortgage of 24 June 1893; Rs. 34,048-12-2 were due to the mortgagee under another bond and the sum of Rs. 1,054 was paid by the mortgagee to the mortgagors in cash. Under the provisions of this latest mortgage the mortgagors were given the option of redeeming villages Nos. 1 and 5 separately for the sum of Rs. 59,500 and the right of redeeming villages Nos. 4 and 6 separately for the sum of Rs. 43,700. If however the mortgagors wished to make a separate redemption under the provisions of the deed, they were bound to redeem villages Nos. 4 and 6 in the first place. Ghasi Ram, the mortgagee under the mortgage of 31 March 1905, died and was succeeded by his widow Mt. Ineha Kuar. She succeeded to the mortgage along with the widow of Ghasi Ram's brother.

(3.) In the year 1909, one Keshav Deo obtained a simple money decree against Mt. Incha Kuar and her sister-in-law. This decree he put into execution in 1910 and put up the mortgage of 31 March 1905 to auction. The mortgagee rights in villages Nos. 1 and 4 were purchased by Punna Lal and Peare Lal, defendants 1 and 2, for the sum of Rs. 13,000. The sale was effected on 20 December 1910 and confirmed in February 1911. After the sale Ghasi Ram's heirs, namely, Mt. Incha Kuar and her sister-in-law, remained in possession of the mortgagee rights in respect of villages Nos. 5 and 6 under the mortgage of 31 March 1905. Villages Nos. 4, 5 and 6 have been redeemed: No. 4 for the sum of Rs. 21,500, No. 5 for the sum of Rs. 29,500 and No. 6 for the sum of Rs. 22,200. In other words Rs. 73,200 due under the mortgage of 31 March 1905 have been repaid and villages Nos. 4, 5 and 6 have been released. The plaintiff now seeks to redeem village No. 1 and offers the sum of Rs. 12,894 for the release of the village from its liability under the mortgage of 31 March 1905. A suit was brought upon the mortgage of 13 January 1893, suit No. 50 of 1911. A decree was passed in this suit on 3 August 1911 and the mortgaged property was sold and bought by the plaintiff on 22 March, 1923. The plaintiff bought village No. 1, but his purchase is subject to the prior charge created by the mortgage of 6 January 1882. It is a matter of admission that this charge was continued by the mortgages of 24 June 1893 and 31 March 1905.