LAKHMICHAND TRILOKCHAND Vs. JANARDHAN

JUDGEMENT

(1.) THE plaintiff, Lakhmichand Trilokchand, sued the defendants, Janardhan and Wasudeo, for redemption of a mortgage, dated 10th March 1900, executed by one Ragho and his son Shrawan in respect of an absolute occupancy field. The first Court granted the decree as craved for, but, on appeal by the defendants, the District Judge, Nagpur, dismissed the plaintiff's suit.

(2.) THE following are crucial data with regard to the present case :

(3.) I do not think, however, that this complicated case has received sufficient attention or consideration at the hands of the Judge of the lower appellate Court. The subsequent mortgagees were not joined as parties to the first suit on the prior mortgage and the plaintiff's real contention appears to be that, by paying the decretal amount in Vishwanath Patel's suit, he became subrogated to the right of the subsequent mortgagees to redeem the prior mortgage. Everything seems to me to center round the intention of the parties when the sale-deed of 27th May 1914 : was executed. That sale-deed is not on record. In this connexion, moreover, a question of mixed fact and law arises as to whether this sale-deed is or is not to be held one which was executed is pendens, The question of subrogation, in short, which arises in this case and which was more or less definitely pled in paras. 2 and 3 of the plaint, has not received sufficient consideration at the hands of the lower appellate Court. The present plaintiff, 'assuming that his sale-deed was a valid one and was not vitiated by the doctrine of is pendens, can hardly be described as a volunteer. He was a party in the second mortgage suit and paid up the decretal amount. It seems to me essential, therefore, that the sale-deed of 27th May 1914 should be on the record as it may afford some clue to the intention of the parties to the transaction. It has, indeed, been suggested on behalf of the present respondents that the doctrine of subrogation does not apply in the circumstances of the present case and that there seems to have been no intention to keep the other mortgage alive. This, like the other questions, involves findings of fact which it is undesirable this Court should at present consider. The case therefore, must go back to the lower appellate Court for further consideration.