GAJADHAR PRASAD GANGAPERSAD SHUKUL Vs. RISHABKUMAR MOHANLAL BANIYA

JUDGEMENT

(1.) THIS judgment will also govern the disposal of First Appeal No. 96 of 1942. These two appeals are against a decree under Order 34, Rule 6, Civil P.C., 1908, against Gajadharprasad Shukul (defendant 4): First Appeal No. 93 of 1942 is by him, and First Appeal No. 96 of 1942 is by the decree holder.

(2.) FOR a proper understanding of the case, it is necessary to set out the following facts. Parmanand executed a mortgage on 25th July 1922 (EX. P-21) in favour of Mohanlal as a manager of the joint Hindu family consisting of himself and his brother Balmukund. The consideration of the mortgage was Rs. 8000. The interest payable on the mortgage was 9 per cent, per annum with yearly rests. The amount due on the mortgage was to be paid in five years. The mortgaged property consisted of 0-16-0 share of mauzas Pandajhir, Chopra, Daha and Pathara and 068 share of mauza Harat, O-2-8 share of maum Gadia, 0-4-0 share of mauza Lidhora and 0-6-0 of mauza Badagaon. Permanand died on 11th February 1923. Mt. Phulandulayya is his widow. Jamunaprasad was his son but he died after the final decree for sale.

(3.) BALMUKUND sold 0-6-8 share of mauza Harat, 0-8-0 share of Badagaon, 0-4-0 share of Ludhora, and 0-16-0 share in mauzas Chopra, Daha and Pathariya to defendants 3 to 7 under the sale deed dated 18th May 1927 (Ex, 4 D-1) which he executed for himself and on behalf of his minor nephew Jamunaprasad. All these villages were under mortgage except that 0-8-0 share of mauza Badagaon was sold while the mortgage was over 0-6-0 share only. Out of Rs. 28,000, the consideration of the sale deed, Rs. 22,000 were kept with the purchasers for payment of the amount due to the mortgagee, Seth Mohanlal, under the two mortgage deeds. The purchasers agreed to pay Rs. 22,000 to the mortgagee but they did not pay that amount to the mortgagee notwithstanding that they had agreed to do so. Seth Mohanlal, the mortgagee, died leaving behind him a minor adopted son, Shrimant Seth Rishabh. kumar as his heir.