JAGDAMBA PRASAD LALLA Vs. ANADI NATH ROY

JUDGEMENT

(1.) This is an appeal by defendants 5 and 6 and arises out of an action on a mortgage dated 20 January 1922, the consideration for which was Rupees 1,30,000. No question arises as between the mortgagor and the mortgagee, the only matter in dispute being the interest of the two appellants who are said to be entitled to the sub-soil rights of two of the villages, which are the subject-matter of the bond, free of the encumbrance. The plaintiff sued as the assignee of the mortgage from defendant 17 who is the mortgagee, and who was a minor but had attained his majority at the time of the assignment to the plaintiff which was dated 23 December 1932. Defendant 1 is the mortgagor. Defendant 17 granted the mortgage in suit acting through his mother, who was his guardian appointed by the District Judge of Burdwan by an order dated 23 February 1920, about two years before the mortgage. Defendants 5 and 6 were the appellants and were joined in the suit as they claimed the interest which I have already stated.

(2.) It is important to notice the facts relating to the mortgagee as a great deal of the argument depends upon his position with regard to the mortgage bond and another transaction to which I shall in a moment refer. One Gadadhar was the grandfather of defendant 17, Dharanidhar Rai. Gadadhar was married twice. By his first wife he had two sons Jugal and Pramatha. Pramatha is the father of defendant 17, the mortgagee. By his second wife he had three sons, who for convenience will be referred to as the stepbrothers and from whom at all material times Jugal and Pramatha were separated. The case of both the appellants is that their interest in the sub-soil of the two villages is not affected by the mortgage.

(3.) The interest of defendant 5 arises as follows: On 21 of Magh 1930, i.e. in the year 1923, the mortgagor executed a jot bemeadi ijara patta of mouza Mahuda in favour of defendant 5. One Raghupati Chatterji of Purulia on 8 August 1926 transferred to defendant 5 the right, title and interest of defendant 1 in mauza Mahuda excepting what had already been settled with defendant 5 under the ijara patta, and which had been purchased by him in a court sale on 16 June 1925 in execution of a decree obtained against defendant 1. Again on 3 September 1927 one Shiba Prasad Chatterji also conveyed to defendant 5 the right, title and interest of defendant 1 in the same village subject to the rights of Raghupati Chatterji's purchase which I have mentioned and which he (Shiva Prasad Chatterji) had purchased in a court sale on 16 July 1923 in execution of a decree against defendant 1. It is the transaction of 12 August 1927 upon which in this case the rights of defendant 5 depend. On that date defendant 5 claims that the mortgagee defendant 17, acting through his guardian, granted him a deed of release of the sub-soil rights of village Mahuda. By this deed, it is claimed; that the sub-soil rights in this village were-excluded from the operation of the mortgage. Although not recited in the deed, it is stated in evidence that the consideration for this deed of release was a sum of Rs. 5000 and the position of defendant 5, if this transaction is established, would be that having obtained by the transactions, to which I have referred, the equity of redemption of the sub-soil rights in a portion of the village, he redeemed the mortgage to the extent of the sub-soil rights of village Mahuda by obtaining the deed of release in question.