LACHHMI NARAIN Vs. SAJJADI BEGAM

JUDGEMENT

(1.) In this case the plaintiffs came into Court as the heirs of one Musammat Turab-un-nissa. They claimed to recover I from the defendant a certain sum of money) as arrears of annuity, or malikana charge, alleged to be payable by the defendant as the successor-in-interest of the mortgagee under a certain mortgage-deed of December the 1st, 1870. The defendant resisted the claim on three grounds, with two of which we are no longer concerned. He said that one Bismilla Begam was a necessary party to the suit and also put the plaintiffs to proof of their title as heirs of Turab-un-nissa. These two points have been concluded against him. His third plea was to the effect that under a series of sale- deeds, beginning with the 3rd of November 1912 and ending with the 16th of November 1913, he had himself become the owner of the equity of redemption under the mort-gage deed of December the 1st 1870 He contended that the liability sought to be enforced against him attached to him only so long as he was in possession of the land as mortgagee and ceased from the date of his complete acquisition of the equity of redemption The learned Munsif tried the case on issues appropriately framed, but soon found himself involved, as we ourselves have done, in certain questions as to the effect of the results of previous litigation on the position of the parties to the present suit. However, he came to the conclusion that there had been no previous decision, binding upon the parties, which prevented the defendant from asserting that his liability to pay this annuity came to an end from the date on which he completely acquired the equity of redemption. He then went on to hold that this plea, open to the defendant, was a good one in fact and in law. He held that there had been a complete merger of the interests of the mortgagor and mortgagee under the deed of December the 1st, 1870, and that all liability on account of this annuity came to an end from the date of such merger. Fie framed his decree accordingly, allowing a part of the claim of the plaintiffs and dismissing the rest.

(2.) The plaintiffs went in appeal to the Court of the District Judge. We have not found it at all easy to determine what the District Judge is to be understood as having decided. He certainly has not dealt with the difficult question of law which arises on the first Court s finding that the equity of redemption under the mortgage of December the 1st, 1870, had been completely acquired by the defendant. Indeed he purports to reverse that finding. He says in so many words that the defendant has not purchased the whole of the equity of redemption; and, in another portion of his judgment, that some part of the mortgagor s equity of redemption is still with the plaintiffs. If we felt able to treat these expressions of opinion by the learned District Judge as clear findings of fact, we should have to accept them as decisive of this suit. It seems to us, however, that they proceed in part upon an erroneous view of the effect of a particular finding recorded in a suit between Musammat Turab-un-nissa and the present defendant, to which we shall have to refer at greater length. In part also they are based upon certain arguments as to an apparent discrepancy: between the area shown in the two documents of title produced by the defendant with regard to that portion of the mortgaged property which is situated in a village called Dhelawal. These arguments we find ourselves quite unable to follow; indeed the learned Advocate for the respondents could only suggest that there must be some clerical error, either in the judgment of the learned District Judge, or in the documents referred td by him. We are not prepared, therefore, to deal with the case on this basis, that the appeal of the-defendant is concluded by any finding of fact recorded by the lower Appellate Court. The judgment of that Court has not, as a matter of fact, been supported before us on the grounds on which it proceeds. We have, however, been asked to hold that, in any case, the decision of the Court of first instance, according to which the liability of the defendant in respect of the annuity claimed came to an end on the 16th of November 1913, is unsustainable upon legal grounds, in view of the results of the previous litigation in which these same parties had been concerned. We feel that this is substantially the point with which we have to deal.

(3.) The mortgage of December, the 1st, 1870, containing curious provisions, as to the reservation of an annuity in favour, of the mortgagor Maujud Ali Shah and his wife Abadi Begum, was eminently calculated to lead to misunderstanding and litigation between the parties concerned. The records of this Court show that it has had that result. What we are concerned with at present is a suit instituted in the year 1909 by Musammat Turab-un-nissa, the predecessor-in-title of the present plaintiffs. That was a suit against the same defendant who is now the appellants before us, and it is not denied that whatever was decided in that litigation is binding, upon the parties to the present suit. Musammat Turab-un-nissa claimed to be entitled to recover from this defendant, as mortgagee in possession of the property, referred to in the deed of December the 1st, 1870, a large sum of money on account of the arrears of the annuity thereby reserved. Her claim was based upon the allegation that she was the heir of the original mortgagor Maujud Ali Shah. The allegation was contested, but was finally decided in her favour after an order of remand by this Court. The principal defence to that suit was that the proprietary rights of Maujud Ali Shah in all the lands affected by the mortgage in question had been sold at successive auction sales in execution of decrees. It was contended that inasmuch as no portion of the equity of redemption in the mortgaged property remained vested in Maujud Ali Shah, or in Musammat-Turab- un-nissa as his heir, it followed that no claim on account of this annuity, or malikana allowance was maintainable by the then plaintiff. This point was dealt with by the learned Subordinate Judge who first decided that case on the 16th of December 1909, and whose judgment is on the record now before us. The 7th issue framed by him was "whether the equity of redemption has been sold? If so, what is its effect?" On this he found, to begin with, that only a portion of the equity of redemption had been sold. He then went on to, say, referring to certain previous litigation which had taken place between the present defendant on the one side and the auction-purchaser of a portion of the equity o? redemption on the-other, that the right to receive this allowance was not saleable and Would not have passed to the auction-purchasers at any of the auction-sales. He decreed Musummat Turab-un-nissa s claim as brought. There was an appeal to the Court of the District Judge and the judgment of that Court is dated September the 12th, 1910 : It is clear that before the District Judge the defendant then took the point that the whole of the equity of redemption in the mortgaged property had, as a matter of fact; been sold and no longer belonged to Maujud Ali Shah or his heirs, and from this allegation of fast asked the Court to draw the conclusion that Musammat Turab-un-nissa, as heir of Maujud Ali Shah, had no right to claim any portion of this annuity. The learned District Judge dealt with this plea on the assumption that the whole of the equity of redemption had as a matter of fact been sold prior to the institution of that suit. There has been some argument before us as to whether his remarks on this point can be treated as representing admissions made by both the parties at the hearing of the appeal, or findings of fact binding upon the parties. It was certainly the case for the present defendant, both in the suit brought by Musammat Turab-un-nissa and in the present suit, that the proprietary rights of Maujud Ali Shah in respect of all the property which formed the subject-matter of the mortgage of December the 1st, 1870, had been put up for sale in successive execution proceedings and had entirely passed into the bands of various auction-purchasers. In the case now before us the learned Munsif has found that this is what had taken place, and he gives certain dates according to which the last fragment of his proprietary rights in the mortgaged property passed from the hands of Maujud Ali Shah at an auction-sale which took place on the 3rd of January 1873. It does not seem to us that this finding of fact was seriously challenged in the appeal before the District Judge, and in any case we think that the present defendant at any; rate has no ground for complaint if we assume the truth to be-what we think it actually was, namely, that the proprietary rights of Maujud Ali Shah had been entirely sold up and had passed into theft hands of various auction-purchasers longs before Musammat Turab-un-nissa instituted her suit in the year 1909.