GANESH PRASAD Vs. RAM SHANKAR LAL; BALDEO DAS

JUDGEMENT

(1.) This appeal arises in a suit brought for sale upon a mortgage executed on the 16 of March 1894, by Gaya Prasad and Musammat Jasoda Kunwar in favour of the predecessor in title of the plaintiffs respondents. Musammat Jasoda Kunwar was the widow of one Munni Lal, who died on the 8 of January 1833. They had a daughter named Anpurna Kunwar, who was married to the appellant Ram Shankar Lal. Both Jasoda Kunwar and Anpurna Kunwar died in February 1896. Jasoda Kunwar, before her death, made a will on the 9 of July 1894, in favour of Anpurna, and Aupuma, on the 13 of February 1896, made a will in favour of her husband Ram Shankar Lal. The latter is in possession of the bulk of the mortgaged property since the death of his wife Anpurna Kunwar. Gaya Prasad, one of the mortgagors, is also dead. He is represented in this suit by his son Baldeo Das, The properties comprised in the mortgage consisted of: (1) certain immovable property which admittedly had belonged to Munni Lal; (2) mortgagee rights in certain properties acquired by Musammat Jasoda Kunwar after Munni Lal's death: and (3) property which stood in the name of Gaya Prasad Consisting partly of proprietary rights and partly of mortgagee rights.

(2.) The Court below has decreed the claim save as to certain items of property, which, it has held, formed part of the estate of Munni Lal to which Jasoda Kunwar succeeded. Baldeo Das, the son of Gaya Prasad, has submitted to the decree. Ram Shankar Lal, who resisted the claim in the Court below, has preferred this appeal. An objection under Section 561 of the Civil P. C. has been filed by the plaintiffs respondents in regard to that portion of the claim which has been dismissed.

(3.) One of the pleas taken in this appeal was that no decree could be legally made for the sale of the mortgagee rights. This plea was supported by certain rulings of this Court, but, as we had doubts as to the correctness of those rulings, we referred the question to a Full Bench. The Full Bench has held that a decree for the sale of mortgagee rights can legally be passed in favour of a sub-mortgagee Supra, p. 385. This decision of the Full Bench disposes of the 4 plea taken in the memorandum of appeal.