FATEH SINGH Vs. RAGHUBIR SAHAI

JUDGEMENT

(1.) This is a Letters-Patent appeal brought by three plaintiffs whose suit was decreed by the two Courts below, but has been dismissed by a learned single Judge of this Court. The plaint set out that Tilok Singh, (who was actually the maternal grandfather of the plaintiffs), had received a mortgage with possession of a certain share of zamindari property. The date of this mortgage is not given, but in evidence it has been admitted by defendant 5, Dal Chand, that Tilok died some 40 or 45 years ago and the usufructuary mortgage in his favour by Durjan Singh must have been prior to that date. The plaintiffs further set out that Tilok Singh died and left two widows, Mt. Bilka Kuar and Mt. Gaura. On 23 July 1907, Mt. Bilka Kuar executed a sale-deed in favour of Dal Chand, defendant 5, and Chandan, the father of defendants 1 to 4. This sale-deed was of one-half of the mortgagee rights which she owned jointly with the co-widow. The consideration was Rs. 250. Both widows and a daughter are now dead. The remedy asked in the plaint is a declaration that this transfer was not binding on the plaintiffs who are reversioners and that they might eject the defendants and be put in proprietary possession of the property detailed below. Now as the plaint was originally brought it was somewhat different and the reference was only to a deed of sub-mortgage by Mt. Bilka Kuar dated 14 July 1904. In regard to that document the written statement of Kandhai Lal, defendant 1, was that it had been paid up and further it was claimed that it did not relate to the property in relief (c) of the plaint. Apparently this position was accepted by the plaintiffs and the plaint was amended by the introduction of the sale-deed of 23rd. July 1907 as the basis of the plaint. It may be noted? in passing that two other defendants Mt. Gulab Kuar and Mt. Bhagwan Kuar were merely persons to whom it was alleged that during the pendency of the suit deeds of gift had been made by the other defendants and their case need not detain us. Now the Courts below found that there was no legal necessity for the sale-deed of 23 July 1907. The Courts therefore decreed the suit of the plaintiffs. The learned single Judge took a view that Mt. Bilka Kuar was entitled to recover a debt and therefore she could accept money from some other person who was willing to pay the debt and she could transfer her mortgagee interest to that person. He further stated: It has been found by the Courts below that the mortgage which was transferred to Dal Chand and Chandan has now been redeemed.

(2.) Accordingly he allowed the appeal of the defendants and dismissed the suit of the plaintiffs. Now in regard to his statement that the mortgage has now been redeemed, learned Counsel for respondents contended that this referred to the usufructuary mortgage deed of the period of about half a centuary ago. It has never been the pleading in the written statement that that usufructuary mortgage deed has been paid or redeemed. When Dal Chand gave evidence no doubt he did state that there was a mortgage which was satisfied, but this apparently related to paragraph 2 of the written statement of Kandhai Lal which is as follows: The deed of mortgage, dated 14 July 1904, has been paid up. The plaintiffs have brought this suit on some misunderstanding. Probably the claim has been got up on the basis of a paid deed of mortgage by looking the name of the contesting defendants entered in the khewat.

(3.) Now this paragraph refers clearly to the document of 14 July 1904 which is described by the plaint in para. 10 as a sub-mortgage by Mt. Bilka Kuar. The defence that that sub-mortgage had been paid up was apparently correct. In this paragraph however there is an admission that the names of the contesting defendants are still in the khewat. It is shown therefore that the contesting defendants are still in possession except so far as they have made deeds of gift during the pendency of the suit. I am satisfied that the learned single Judge was mistaken in thinking that the Courts below had held that the usufructuary mortgage of half a century ago in favour of Tilok Singh had been redeemed. Issue 1 no doubt in the judgment of the trial Court was "Has the mortgage deed in suit been satisfied?", and it was held that it had been satisfied, but as the plaint shows that mortgage deed was the deed of sub-mortgage of 1904. I am satisfied therefore that the usufructuary mortgage referred to in the plaint as made in favour of Tilok Singh is still in existence as a usufructuary mortgage and has not been redeemed. The learned single Judge drew a distinction between moveable and immovable property. He states: There is however one other argument which in my opinion is sufficient to cause the suit to fail. I am not satisfied that this was an alienation which the widow was not entitled to make in accordance with Hindu law. It has been more or less presumed that the widow was transferring immovable property.