HAKIM KANHAIYA PRASAD Vs. MTHAMIDAN

JUDGEMENT

(1.) This is a second appeal by the plaintiff whose suit has been dismissed in the two lower Courts. The case has been referred to a Pull Bench. The facts are that the plaintiff obtained a mortgage deed executed by one Bachnu on 17 April 1923, which is printed on page 15 of the-supplementary record. It is on this document that the plaintiff brings his suit for sale and one of the points found against the plaintiff by the two lower Courts is that this document does not give the plaintiff any right of sale of the property comprised in it. We may before considering this document mention briefly the facts that have taken place in this case. This document was a mortgage, firstly of a house No. 80/10 in Quli Bazar in Cawnpore, of the whole house, and secondly of 6/36 sihams of another house No. 55/69 (present No. 55/79) in Nayaganj. Now the mortgagor Bachnu did not really have this share in the second house but only had 3/36 sihams. This second house was owned by Mt. Idan to the extent of six sihams and she was the first wife of the mortgagor Bachnu and she made a gift to him of the six sihams but this gift was held invalid. Bachnu consiered he was her sole heir but he was only the heir of half the property, that is, three sihams and the other half was inherited by Husain Baksh.

(2.) Another point which arose was that on 9 December 1924 the share of Bachnu in this house was put up to auction sale on a simple money decree against him and was purchased by defendant 5, Baikunth Narain, who sold it later to defendant 4, Muhammad Ali. Now Husain Baksh brought Suit No. 57 of 1931 against the heirs of Bachnu and it was held in that suit that Bachnu was only entitled to three sihams. The present plaintiff, Kanhaiya Prasad, was also a party to that suit. At the same period there was another Suit No. 916 of 1930 by defendant 4, Muhammad Ali, against the plaintiff and heirs of Bachnu in which it was held that Muhammad Ali was entitled to possession. In that suit the plaintiff had claimed that he (the plaintiff) was entitled to retain possession under his mortgage of 17 April 1923, as a usufructuary mortgage. Mohammad Ali, on the other hand, contended that it was a simple mortgage. The Munsif in that suit held that it was a simple mortgage and that the plaintiff had no right to hold possession. Another complication arises from the fact that on 29 March 1927, on p. 5 of the supplementary record, there was another mortgage deed executed by Bachnu of the same property as in the earlier deed and he mortgaged now with possession by conditional sale and made the amount due under his former mortgage part of the consideration of the mortgage of 1927. It is contended by defence that this document terminated the validity of the mortgage deed in suit under the pro visions of Section 62, Contract Act. The mortgage deed of 1927 was followed by two documents executed on 3 October 1928 by the heirs of Bachnu. One of these documents was a sale deed, on p. 13 of the supplementary record, setting out the former mortgage deeds and stating that the mortgage money due under the deed of 1927 was the consideration for the sale deed of the share in house No. 55/69. On p. 9 there was a mortgage deed of the same date also for the consideration due under the mortgage of 1927.

(3.) The first question now which I consider is whether the mortgage deed of 17th April 1923, as it stands, entitles the plaintiff to a decree for sale of the mortgaged property. The mortgage deed has certain conditions. One of these states : "I have mortgaged with possession on the conditions laid down below." This no doubt is a statement that the mortgage is one with possession, but a mere statement is not sufficient. The document states further that the property ia mortgaged for Rupees 1000 at the rate of Rs. 1-8-0 per cent, per mensem, promising to pay the same within a year. There is here I consider a definite promise to pay the mortgage money and interest within a year and I consider that the lower Appellate Court was incorrect in holding that this clause merely implied a right of redemption. The first condition laid down: I shall continue to pay Rs. 15 the amount of interest fixed every month to Hakim Saheb and shall obtain receipt.