LAKHMI DAS Vs. MTBADLA

JUDGEMENT

(1.) This is an appeal by the unsuccessful plaintiff in a redemption suit. The mortgage, sought to be redeemed, was executed by one Imam Bakhsh, on the 17 November 1861, in favour of four persons named Bhojraj, Mohan Lal, Hukum Chand and Parmanand, for a sum of Rs. 450. The property mortgaged consisted of four kachcha shops. Imam Bakhsh, the mortgagor, died sometime before the year 1867, leaving as his heirs his son Khwaja Bux and a daughter (whose name is not known). Khwaja Bux died about 2 years prior to the institution of the suit leaving, as his sole heir his son Rahim Bakhsh. The plaintiff purchased the equity of redemption from Rahim Bux under a sale-deed dated the 15 November 1921, for a sum of Rs. 1,000. On the findings of the Courts below, it is abundantly clear, that the plaintiff paid no consideration for the sale, and obtained a sale-deed only with a view to gamble in litigation. However, this fact alone would not disentitle the plaintiff to a decree, if Rahim Bux had a subsisting right to the equity of redemption, on the date of the sale-deed executed by him, in the plaintiff's favour.

(2.) It is admitted on all hands that, on the 5 February 1867, one Karima, purporting to act as guardian of Khawaja Bux sold the equity of redemption in all the four shops to the four mortgagees named above. It has been found by the lower appellate Court that the sale-deed was executed by Karima for the benefit of Khwaja Bux, and that Khwaja Bux acquiesced in the same and never challenged the same, though he lived for a period of more than 50 years after the date of that sale. Thereafter the mortgagees, according to the finding of the lower appellate Court, all along regarded themselves as owners of the mortgaged property, and on the 5 September 1892, the property was divided by the mortgagees, or their heirs amongst themselves. On the 17 October 1894, two out the four shops in dispute, were transferred by the heirs of one of the mortgagees, viz, Hukum Chand to one Mt. Khanu, and the same passed by right of inheritance to Mt. Badla defendant 1. Mt. Badla transferred the two shops to her daughter Mt. Nanhi defendant 9, under a deed of gift dated the 8 June 1920. The remaining two shops were sold by the remaining mortgagees or their heirs, to the father of defendants 2 to 5 on the 16 July 1909. The transferees rebuilt pucca shops in place of the kachcha shops originally mortgaged.

(3.) It has been found by the lower appellate Court that Khwaja Bux was well aware of the sale of the equity of redemption in the year 1867, and that the mortgagees thereafter were dealing with the property as owners, and Khwaja Bux never questioned their right to do so. After all these transfers were made in favour of the persons, who have been found by the lower appellate Court to be bona fide transferees for value, the present suit has been brought by a speculator for possession of the four pucca shops, by redemption of the mortgage of 1861, on payment of Rs. 450. The plaintiff had not even the grace to offer to pay to the transferees, the consideration paid by them for the sales in their favour and the amount spent by them in reconstructing the shops.