SHEOJI Vs. BHASKAR

JUDGEMENT

(1.) MUNJE , A.J.C. 1. This judgment also disposes of first appeals Nos. 81, 99 ands 101 of 1928. These appeals arise out of a suit to enforce by foreclosure the mortgage dated 1st June 1912 executed by defendant 1's father for Rs. 2000 in favour of the plaintiff. The consideration of the mortgage deed was not fully paid up on the date of the mortgage. Rs. 302 only having been paid previous to its execution. The subsequent payments alleged by the plaintiff to have been made towards the consideration are: (1) Rs. 300, paid on 24th August? 1912 (vide Ex. P-6), (2) Rs. 100, paid on 16th September 1912 (vide Ex. P-7) and (3) Rs. 364, paid on 28th July 1913 (vide Ex. P-8). Thus in all, according; to the plaintiff, the total sum advanced was Rs. 1066. The mortgage deed describes the consideration as made up of Rs. 302 already paid and the remaining, amount left with the mortgagee for the satisfaction of previous liabilities of the plaintiff mortgagee viz. (1) Rs. 875 to be paid by the plaintiff to the previous mortgagee Marotrao Deshmukh towards his mortgage dated 8th April 1903 for Rs. 700, for which debt only a portion of the mortgaged property in dispute was hypothecated, viz., the malik makbuza fields; (2) Rs. 225 to be paid to the malguzar in lieu of arrears of land revenue: and (3) Rs. 598 were left with the mortgagee for payment to the mortgagor whenever required. It was stated in the mortgage deed that the mortgage debt was taken in order to pay off the mortgagor's creditors.

(2.) THE sum ear-marked for the previous mortgagee, Marotrao, was not paid and eventually Marotrao brought his suit No. 107 of 1913, to enforce his mortgage. To that suit the plaintiff was joined as a party defendant. A decree was obtained on that mortgage and, before it was made final, the mortgagor had to sell a portion of the mortgaged property viz. the malik makbuza plots to defendant 2 for Rs. 3100 with the object of paying off the amount of the preliminary decree obtained by Marotrao and other debts. The decretal amount was paid and Marotrao's mortgage was satisfied. On 16th April 1923 the same malik makbuza plots along with the village share in which they were situate were purchased by the plaintiff himself jointly with other defendants, viz. defendants 3 to 8, the plaintiff's share being one-third.

(3.) THE lower Court after considering the evidence on both the sides gave the following findings on the above issues: (1) The mortgage is genuine and duly attested. (2 and 3) All the several items alleged by the plaintiff to have been paid towards the mortgage were paid except the last item of Rs. 364 under Ex. P-8, out of which Rs. 198 only was paid towards the mortgage; thus in all Rs. 900 was the total consideration paid. (4) The consideration of the mortgage was partly to satisfy antecedent debts and partly to meet cultivation expenses and thus binding on defendant 1, son of the mortgagor. (5) The mortgage was executed chiefly because the mortgagee had undertaken to pay off the previous mortgage of Marotrao Deshmukh and the land revenue due by the mortgagor. (6 and 10) Marotrao's mortgage debt having, however, subsequently been paid off by the sale of malik makbuza fields, which eventually were purchased by the plaintiff, the mortgage was t split up and the mortgage could be redeemed piece meal. (7) The valuos of the mortgaged properties on the date of the mortgage in suit were malik makbuza fields Rs. 3,500, absolute occupancy fields with appurtenances Rs. 3,600 and the house Rs. 300. (8 and 9) No findings were given. (11) The plaintiff having purchased one-third of malik makbuza land the only amount which he could recover tinder the mortgage was Rs. 756, (12 and 13) No findings were given but it was remarked, while discussing issue 5, that none of defendants 2 to 8 secured the rights under the prior mortgage by the mere fact of having purchased the mortgaged malik makbuza fields and liquidated the debt due under the prior mortgage and that, even if any such rights were acquired, the question amounted to setting up a paramount title which could not be investigated in this case. (14) There was no representation on behalf of the plaintiff when he purchased the malik makbuza fields on 16th April 1923 that his previous mortgage was a mere paper transaction. (15 and 16) The interest charged viz. compound interest at 1 per cent per mensem with yearly rests was neither exhorbitant nor penal. On these findings a decree for foreclosure for Rs. 2,450 as claimed by the plaintiff, was passed.