RAM KUMAR SINGH Vs. PARAM SINGH

JUDGEMENT

(1.) The appellants were the plaintiffs in the suit. The principal reliefs claimed in plaint were these: (a) It may be declared that the property bounded as set forth below and owned by the plaintiffs is not liable to be sold at auction in satisfaction of the decree, dated 17 December 1931, passed in suit No 50 of 1930, Param Singh V/s. Chaudhari Narain Singh by the Court of the Additional Subordinate Judge, Moradabad. (b) If in the opinion of the Court the plaintiffs may be entitled to the relief in respect of a portion of the property instead of the entire property the plaintiff's right may be declared in respect of that portion of the property.

(2.) The Court below has granted to the plaintiffs a declaration that the property in question is liable to be sold in execution of the mortgage decree No. 50 of 1930 for the amount due under the decree minus Rupees 3588-3-0 being part of the principal of the mortgage of 1 February 1926, and interest allowed on this part of the mortgage consideration by the decree.

(3.) The plaintiffs have filed this appeal and the defendant mortgagee decree- holder, Param Singh, has filed cross-objections with regard to this sum of Rs. 3588-3-0. The plaintiffs are the minor sons of Raghunath Singh who is the son of Umrao Singh and Umrao Singh's father was Narain Singh. Thus, the plaintiffs are the great-grandsons of Narain Singh. Between the years 1921 and 1924 Narain Singh purchased by means of several deeds zamindari property in a village called Athain. The family also owned a village called Kuchauli. It has been found by the Court below that this was the ancestral property of the plaintiffs and this finding has not been challenged by the respondent. One Shiam Singh was the owner of a village called Uchaiti. In the year 1925 it was agreed between Shiam Singh on one side and Narain Singh and his son Umrao Singh and grandson Raghunath Singh on the other that these two villages namely Kuchauli and Uchaiti, be exchanged between the parties. Accordingly, on 25 May 1925 a deed of exchange was executed. It is Ex. 16 and is printed at p. 101 of the paper book. The parties to this transaction were agreed that Kuchauli was worth Rs. 40,000 and Uchaiti was worth Rs. 60,000. Narain Singh and his son and grandson had therefore to pay the difference, namely Rs. 20,000 to Shiam Singh. The manner in which this payment was made was this. Shiam Singh had on 14 July 1921 borrowed a certain sum of money from Param Singh, the present defendant-respondent and had hypothecated half of Uchaiti. On the date of exchange, it was found that the amount due on this mortgage from Shiam Singh to Param Singh was Rs. 10,656- 8-0. Narain Singh, Umrao Singh and Raghunath Singh took this liability upon themselves. There was another debt which Shiam Singh had to pay to Kanhai Lal and Kalyan Rai. The details of this debt are these. At one time Shiam Singh did not own the whole of Uchaiti and his cousin Ganga Dutt had a share in it. By a deed of exchange dated 3 January 1923 Shiam Singh gave to Ganga Dutt certain property situated in villages Sultanpur and Phalenda Ishapur and took from him in exchange his share in village Uchaiti. Ganga Dutt it appears had borrowed Rs. 2500 from Kanhai Lal and Kalyan Rai under a deed of simple mortgage of 5 July 1922 and Shiam Singh had undertaken this liability.