BISHNU KALA KARKI DHOLI Vs. BISHNU MAYA DARJEENI

JUDGEMENT

(1.) The two main questions requiring determination in this appeal are whether a mortgagor is entitled to file a suit and to obtain a decree for redemption of mortgage where the deed of mortgage is invalid for want of registration and if not, whether the mortgagor is entitled in such a suit to a decree of recovery of possession on proof of title. There is also another question involved in this appeal which, however, may not require any definite decision, that is, whether a marriage between a Darjee male and a chhetri female is illegal and invalid and as such fails to create any right of inheritance in favour of the wife or the issues of such marriage.

(2.) The suit was originally filed by late Kaloo Karki Dholi Darjee, father of the present plaintiff-respondent Bishnu Maya, against his two full brothers Kaziman and Lall Bahadur for declaration of title and recovery of possession of the suit property. During the pendency of the suit, Kaloo Karki expired and was substituted by his widow Lila Maya and daughter Bishnu Maya; thereafter the widow Lila Maya also died and the suit was continued by Bishnu Maya, the present plaintiff respondent, as the sole surviving legal representative of the plaintiff Kaloo Karki. On the side of defendants one of the two brothers Kaziman also died and was substituted by his widow Bishnu Kala and two minor sons, Bhanu Pratap and Kamal Kumar.

(3.) The facts of the case which, to use a trite phrase, lie in a short compass, may briefly be stated Kaloo Darjee, the original plaintiff and the predecessor of the present plaintiff Bishnu Maya, purchased the suit land by and under a registered deed of sale in the year 1950 from one Jit Bahadur for Rupees six hundred and got the land mutated in his name in due course. Kaloo Darjee fell ill and took a loan from his brother Kaziman and Lall Bahadur in consideration of which he "entrusted" the suit property, being the aforesaid land together with structures thereon, with the said brothers "in the shape of a mortgage with clear understanding that they would restore the land and house to the original plaintiff Kaloo on his return after treatment. But though after his return Kaloo Karki requested his brothers to vacate the suit property on repayment of the loan, they refused to do so and thereafter Kaloo Darjee served a notice to his brother on 12th July, 1971 by registered post and ultimately he filed the suit on 16th Aug. 1971.