MT KUNJLAS KUNWAR Vs. KRISHNA DEO SINGH

JUDGEMENT

(1.) This is a first appeal by Mt. Kunjlas Kuer and 15 other defendants against a decree for redemption granted in favour of Krishna Deo Singh and other plaintiffs by the learned Civil Judge of Allahabad. The plaint set out that there was a usufructuary mortgage dated 25 February 1848 executed by Badal Singh, guardian and sarbarakar of Bharat Singh minor, the mortgagor, in favour of Mahadeo Prasad and Karanpuri Goshain, mortgagees. The amount of the mortgage money was Rs. 13,001. There was to be no interest but profit would go in lieu of interest and redemption might be made in Jeth of any year. The mortgaged property was set out in sch. A of the plaint and had become altered by a partition to the property in sch. B. Para. 3 of the plaint alleged that Bharat Singh only owned one-quarter of the property mortgaged and the remaining three- fourths was owned by Mt. Gulab Kuer and Uttam Kuer and with their consent the name of Bharat Singh was recorded for the entire property and that the mortgage had been made with the consent of these ladies. Para. 4 admitted that on 7th September 1861 the original mortgagees had sold their mortgagee rights to Thakur Sheopal Singh, ancestor of defendants 1 to 16, the present appellants. Para. 5 stated: During the Mutiny in 1857, Bharath Singh turned a rebel. Accordingly his one-fourth share in the mortgaged property was sold at a public auction by the Government and the same was purchased by Sheopal Singh aforesaid. Thus Sheopal Singh remained a mortgagee to the extent of three-fourths only. Now defendants 1 to 16, the heirs and representatives of Sheopal Singh aforesaid, are, as mortgagees, in possession and occupation of three-fourths of the mortgaged property and only a sum of Rs. 9750-12-0 remains as proportionate mortgage money

(2.) The defence of the appellants is given on pp. 14 to 17. The original mortgage was admitted. It was claimed that the property in fact belonged to Bharat Singh and that Mt. Uttam Kuer and Mt. Gulab Kuer had no right or title therein. Para. 19 claimed that the entire property was confiscated to Government. Para. 22 claimed that of the Kotwa property out of 44 villages Sheopal Singh received one-fourth share as reward for his loyalty and as to the 16 mortgaged villages one-quarter share was confiscated and purchased by Sheopal Singh on 21 December 1868. Para. 23 admits that the Government had exempted in favour of Mt. Uttam Kuer and Mt. Gulab Kuer three-fourth share of taluqa Kotwa and there was this partition and out of 16 mortgaged villages, they got a five annas share in 9 villages and a share in Raipur. Para. 24 states as follows: The rights which Uttam Kuer and Gulab Kuer acquired by exemption were, along with other property, sold at a public auction in execution of a decree of Lala Mahadeo Prasad and Mahant Karanpuri to which Uttam Kuer and Gulab Kuer were also parties and all the rights they had in the mortgaged property became extinguished, The said auction sale took place on 20 April 1877, and the property was purchased by Sheopal Singh. Thus, all the mortgagors rights in the mortgaged property became extinct since the date of the purchase and Sheopal Singh and his heirs and representatives entered into adverse and proprietary possession and occupation of the aforesaid villages. The suit is barred by 12 years limitation. Para. 26 stated. The claim is barred by Section 20, Act 9 of 1859.

(3.) Various issues were framed and the learned Judge in the trial Court has granted a decree for redemption of the property in schedule B on payment of Rs. 9,240 which is three fourths of the original mortgage consideration. The appellants have appealed against all portions of the decree.