DOULUT RAM Vs. MEHR CHAND

JUDGEMENT

(1.) THIS is an appeal from the decision of the Chief Court of the Punjaub in a suit brought by Doulut Ram against Mehr Ghand and others, in order to have it declared that under a purchase which he had made under an execution, he acquired not only a 10-annas share, but also the other 6-annas shares which the Defendants dispute, and also to recover possession of those 6-annas shares. In his plaint he says "that on the 11th of January, 1871, Jiwan Mal and Ratan Ghand mortgaged the property to Plaintiff for Rs. 20,000, under the necessity of paying a debt due to the firm known as Nanak Chand, Sarap Chand, of which Defendants are also the proprietors." There seems to be a mistake in stating that the debt was due to the firm instead of a debt by the firm. He then states "that on the 11th of November, 1878, Plaintiff brought a suit by virtue of the mortgage deed and obtained a decree against Jiwan Mal and Lal Chand, son of Ratan Chand. That in execution of the aforesaid decree, Plaintiff purchased the said property for Rs. 44,100 at an auction sale; but when he wanted to take possession, Defendants, who were minors at the time of the mortgage, set up an objection, and on the 23rd of July, 1879, prevented Plaintiff from taking possession of six out of sixteen annas of the property, the value of which is Rs. 16,537.8. Then the Plaintiff prayed for a declaration to the effect that the share of the property regarding which the Defendants set up the objection, was held in mortgage by Plaintiff in a lawful manner; and that the Plaintiff purchased the same in execution of the decree."

(2.) NOW the circumstances of the case are these: - By a mortgage executed by Ratan Chand and Jiwan Mal, the property in question, with some other property, was mortgaged to the Plaintiff. In their mortgage the two mortgagors, who were members of a joint family including the present Defendants, stated that they held ancestral possession of the property, that it was purchased, and built by them, and that they owned it to the exclusion of everyone else. Then, having stated that the old title deeds were destroyed during the Mutiny, they proceeded: - "In these days we have pledged and given in mortgage this property, with all its rights, internal and external, to Seth Dulut Ram, son of Lala Nanu Ram" - that is the Plaintiff - "proprietor of the firm known as Dulut Bam and Sri Bam, bankers." Then they say, in consideration of Rs. 20,000 Queen's coin, "under the necessity of paying a debt due to" - it is there also said "due to," but it should be "due by" - "the firm known as Nanak Chand, Sarup Chand, the proprietors of which are the two of us (promisors) mortgagors (viz. Ratan Chand, son of Nanak Chand, and Jiwan Mal, son of Sarup Chand) and also Mehr Chand," and the other Defendants. Then they say: "We have given up possession of the mortgaged property in question, and given it into the possession of the mortgagee, after the execution of a separate lease, containing our promise in regard to the interest. Our agreement is that we will pay the interest month by month, and the principal sum in a period of three years."

(3.) THEN there was a second mortgage afterwards executed to which the Defendants were parties, in which it was stated that "whereas the whole of our property, consisting of shops and houses situated in the city of Delhi, being ancestral property belonging to our common ancestor Nanak Chanel, is already mortgaged to Lala Doulut Bam and Sri Bam, bankers of Delhi." To some extent that might be evidence against the Defendants, that the first mortgage was binding upon them, and that it included the whole 16 annas, but their Lordships do not think it necessary to place any great reliance upon it.