MEWA RAM SINGH Vs. GANGA RAM

JUDGEMENT

(1.) THE three appeals Nos. 548, 734 and 831 are connected and arise out of one and the same suit brought by Mewa Ram for redemption of certain property. THE claim was resisted on the grounds, among others, that the suit was premature and that the mortgage sought to be redeemed was barred by limitation. THE learned Munsif decreed the claim for redemption on the payment of Rs. 325, 1/4th of the mortgage money. Both parties appealed to the Court of the District Judge. THE learned Judge varied the decree of the first Court by decreeing the claim of the plaintiff for some property in excess of that which was sought to be redeemed and upon payment of the full amount of the mortgage money. THEre are three appeals before us, as already stated, from the two decrees of the lower Appellate Court. No. 548 is the appeal of the plaintiff and the other two appeals are by Ganga Ram, the chief contesting defendant in the case. We shall dispose of the three appeals together. Mewa Ram, the plaintiff, contends that the lower Appellate Court should not have increased the sum for redemption or the property sought to be redeemed. He sued for the redemption of 2 biswas and 10 biswansis out of the mortgaged property, but when the case went to trial before the first Court it was found that he was entitled to redemption of 1 biswa 5 biswansis only, that is 1/4th of the mortgaged property. If the learned Judge of the Appellate Court was of opinion that he, Mewa Ram, was entitled to redeem more than 1 biswa 5 biswansis, redemption should have been allowed on the payment of the proportionate sum payable on the property allowed to be redeemed. THE learned Judge of the lower Appellate Court seems to have allowed redemption to Mewa Ram of 81/3 biswansis in addition to 1 biswa 5 biswansis. THE decree for redemption, however, was granted on payment of Rs. 1,300, the full amount of the mortgage money. THE learned Counsel for Mewa Ram is unable to explain how his client is entitled to redemption of any property in excess of 1 biswa 5 biswansis. THE learned Counsel for Ganga Ram objects, and we think rightly, to that portion of the decree of the learned Judge of the lower Appellate Court which allows Mewa Ram to redeem 81/3 biswansis in addition to 1 biswa 5 biswansis. THE contention for Mewa Ram with regard to the amount payable by him is, in our opinion, correct. Ganga Ram himself has been buying from time to time the equity of redemption from the other heirs of the original mortgagor. THE mortgage seems to have been split up. Mewa Ram is, therefore, entitled to redeem on the payment of the proportionate sum due on his share. His share is 1/4th and, therefore, he is entitled to redemption of 1 biswa 5 biswansis on the payment of Rs. 325. In the other two appeals the principal points urged are that the suit of Mewa Ram is premature inasmuch as one of the conditions of the deed of mortgage is that redemption will only be allowed in the month of Jeth; that no tender was made by Mewa Ram in the month of Jeth and hence the suit is premature and ought to fail. THE second contention on behalf of Ganga Ram is that the claim of Mewa Ram for redemption of the mortgage of 1850 is obviously barred by limitation, unless he can show that there was an acknowledgment before the expiry of the limitation period by the mortgagees or their legal representatives; that Mewa Ram has not proved the acknowledgment of at least some of the legal representatives of one of the mortgagees. Hence the claim is barred by limitation. In support of the first contention the case of Gokul Singh v. Saheb Singh 38 Ind. Cas. 162 : 15 A.L.J. 121 is cited. We think that the facts of that case are quite different from those of this. In the present case the plaintiff came into Court on the allegation that the mortgage had been satisfied by the usufruct of the property long before the suit. As to the plea of limitation, we think that the wajib-ul-arz was attested by Shib Lal, one of the original mortgagees, and by the two major sons of Khem Karan. Under these circumstances we think that the claim is not barred by limitation. THE result is. that the appeals of Ganga Ram fail with the exception of the objection as to the redemption of 81/3 biswansis in excess of 1 biswa 5 biswansis; and the appeal of Mewa Ram succeeds with regard to the amount of redemption money. We accordingly modify the decree of the lower Appellate Court by decreeing the claim of Mewa Ram. for redemption of 1 biswa 5 biswansis on the payment of Rs. 325. THE appeal of Mewa Ram is, therefore, allowed with costs. THE appeals of Ganga Ram fail with the exception of the modification above mentioned. With regard to the costs of the appeals of Ganga Ram, that is appeals Nos. 73i and 834, we direct that the parties; should receive and pay costs in proportion to success and failure. We understand that in pursuance of the decree of the lower Appellate Court the appellant has already paid into Court a sum in excess of that now awarded by this Court. Such excess must, therefore, be repaid to him and he will be entitled to redemption forthwith.