JAGAT SINGH Vs. JAI NARAIN

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the dismissal of their suit for redemption of a mortgage. They are the song and grandsons of Bahadur Singh and Tundi Singh who executed the mortgage in suit on 20 April 1877 in favour of Damodar Das for a sum of Rs. 22,000. Under the mortgage two villages Ramnagar Jagatpur and Pasgawan were mortgaged with possession, and half share in Mouza Deothan was hypothecated by way of security for payment of the mortgage money at the time of redemption should the value of the two villages mortgaged with possession prove insufficient to pay the debt. The rate of interest, and the collection charges were fixed by agreement between the parties. The result of the transfer was that Damodar Das took possession as mortgagee of the two villages, and obtained a lien by way of a simple mortgage over the third village. Four days later on 24 April 1877 the mortgagee leased the two villages Ramnagar Jagatpur and Pasgawan to the mortgagors and on the same day the mortgagors hypothecated the two villages and half share in village Deothan as security for payment of the lease money agreed to be paid under the lease of the same date. A charge was created in Clause (6) in the following words: In security of the lease money we hypothecate the 20 biswa share in each of the villages Ramnagar Jagatpur and Pasgawan named above, and the 10 biswa share in mauza Deothan in addition to the charge of the mortgage money due under the mortgage deed dated the 20 April 1877.

(2.) As usually happens in these cases, the mortgagors behaved as if nothing had happened, went on pocketing the profits of the villages and paid nothing to the mortgagee-lessor. The result was that under Clause (2) of the lease Bahadur Singh and Tundi Singh were ejected from the two villages on 15 May 1879. After taking possession of the two villages Damodar Das instituted a suit to enforce the simple mortgage of 24 April 1877 against the three villages on 10 June 1880 for recovery of the amount of arrears of lease money. The prayer in that suit was that a money decree may be passed, and in case of default of payment the property subsequently hypothecated, that is, the three villages, may, subject to the prior hypothecation lien created under the mortgage deed of 20 April 1877, be sold by auction. The claim was admitted, and Damodar Das obtained a judgment and decree in terms of his prayer in the plaint. The property was put up to auction and purchased by Damodar Das himself in satisfaction of the decree. The terms of the sale certificate are (p. 95): The entire 20 biswas in the village Ramnagar Jagatpur and the entire 20 biswas in the village Pasgawan as well as 10 biswas in the village Daothan were purchased by Damodar Das for Rs. 10,400-6-0 with proclamation that Rs. 22,000-0-0 the prior mortgage money, was due to the decree-holder in this suit and that a suit was brought by Carew and Company to the effect that the judgment-debtors had sold the jungle...in village Deothan...and that a claim was brought by Mt. Rupni, daughter of Jagat Singh, a minor, to the effect that the property advertised for sale was ancestral, and the judgment-debtors had spent the money for unlawful purposes, and that Rs. 1,000-0-0 were in arrears in village Deothan.

(3.) This is a clear narration of the disabilities alleged to attach to the property and what would or might affect the property in the hands of the auction purchaser.