JADURAM Vs. BHAWANISAO

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit to enforce a mortgage of a house situated in the village of Mungeli. The respondents were joined as defendants as being subsequent mortgagees of the house. They are also proprietors of the patti in which the house is situated and they raise the pleas that the owner of the house was incompetent to mortgage it without their consent, that the mortgage is consequently void as against them and that It cannot be enforced. The trial Court refused to go into the question of the respondents' right under the paramount title claimed by them, but the lower appellate Court has decided the question and has held that the respondents were proprietors of the patti, in which the house is situated at the time of the mortgage in plaintiff's favour, that the mortgage is void as against them and that it can only be enforced as against the superstructure: the decree of the trial Court has been modified accordingly.

(2.) IT is urged in appeal that the village had not been divided into pattis at the time of the mortgage in plaintiff's favour and that the lower appellate Court's finding on this point is indefinite. That does not appear to me to be so: the finding of the lower appellate Court is that at the time of the mortgage the present appellants, that is, the respondents in this Court, were the owners of the patti in which the house is situated and that the mortgage having been made without their consent is not binding on them so far as the site of the house is concerned. That clearly means that the village had been divided into pattis at the time o? the mortgage. There is evidence to support that finding and it is binding upon me.

(3.) IT is next urged that this term of the wajibularz is not in practice enforced. The learned advocate, who appeared for the plaintiff-appellant, did not go so far as to argue that there was an established custom by which houses in the abadi could be mortgaged without the malguzar's consent and, there being no custom, the fact that there have been mortgages without the malguzar's consent does not make the mortgage in suit a valid one as against the malguzar. The fact that the respondents had themselves taken a mortgage of the house proves nothing: they were the malguzars and no consent was, therefore, necessary. Another point taken on behalf of the appellant is that the lower appellate Court was not entitled to go into the rights of the respondents under the paramount title that they claimed as malguzars. In this connexion reference has been made to Hanumansingh v. Manulal [1910] 6 N.L.R. 156: but in that decision it is not laid down that rights claimed under a paramount title cannot be gone into but merely that the party claiming that title is not bound to set it up by way of defence: and similarly in Raghunath v. Seolal [1917] 13 N.L.R. 69, it is not laid down that a paramount title cannot be pleaded. That decision merely says that a party, who claims to be dismissed from the suit on the ground of paramount title, cannot afterwards claim to redeem the mortgage in a subsequent suit. Gobardhan v. Manna Lal [1918] 40 All. 584 and Satagauda Appanna v. Satapa [1920] 44 Bom. 698, have also been relied on. In the latter case the defendants who set up a paramount title, were held not to be proper parties to the suit; and, with due respect to the decision in the former case, I am unable to see why the respondents in the present case, who are proper parties to the suit as subsequent mortgagees and were not denying the mortgagor's title to the house but merely his power to make an effective mortgage as against them, should not have all questions arising between them and the appellant settled in this suit. I see no reason for dissenting from the lower appellate Court's decision that the mortgage can be enforced only against the superstructure on the site. I dismiss the appeal with costs.