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Shadi and ors. Vs. Sultan Khan and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1946All56
AppellantShadi and ors.
RespondentSultan Khan and anr.
Excerpt:
.....- in appeal, however, the learned district judge has held that he was satisfied that the widow and the two daughters of karamat named above were still alive and therefore the applicants 'were not entitled to redeem their shares......10, agriculturists' relief act, an application must be brought before the collector only if the -original mortgage-debt does not exceed rs. 500. learned counsel has argued that the learned district judge was not right in splitting up the original mortgage-debt and in trying to find out whether the shares of the applicant would be more or less than rs. 500. to my mind, the argument is correct. section 10 of the act provides that if the principal money secured does not exceed rs. 500 the application is to be filed before the collector. the principal money secured in this case was rs. 3800 and on the ordinary meaning of the section it is impossible to say that what it contemplated was that the share of the applicants alone was to be taken into consideration. even if the shares of the.....
Judgment:
ORDER

Mallik, J.

1. This civil revision is under Section 115, Civil P.C. The applicants had filed an application under Section 12, Agriculturists' Relief Act, for redemption of a mortgage 'dated 24th October 1893 for Rs. 3800. Some of the representatives of the original mortgagors had redeemed the mortgage in January 1928. The applicants wanted to pay their share of the mortgage-debt and get possession of their share of the property. 'The original mortgagors had left a large number of heirs, three of whom Mt. Midi, Mt. Sadiqan and Mt. Makbuli, according to the applicants, had not been heard of for over forty years. The applicants' case was that they were dead and the applicants as their legal representatives were entitled to redeem their shares also. The trial Court decided in favour of the applicants and held that they were the heirs and legal representatives of Mt. Midi, Sadiqan and Makbuli who must be presumed to be dead. In appeal, however, the learned District Judge has held that he was satisfied that the widow and the two daughters of Karamat named above were still alive and therefore the applicants 'were not entitled to redeem their shares. The learned District Judge had held that if the shares of the three women were excluded, the shares of the applicants in the mortgage sum secured would be less than Rs. 500. Relying on Section 10 Agriculturists' Relief Act, he has come to the conclusion that the application should have been filed before the Collector and it could not be entertained by the civil Court. Section 10, Agriculturists' Relief Act, reads as follows:

Applications under this chapter shall, if the principal money secured does not exceed Rs. 500 be brought before the Collector, and the word 'Court' in this chapter shall in such cases include the 'Collector.'

2. The applicants have come up in revision to this Court, and it has been argued before me by learned Counsel that under Section 10, Agriculturists' Relief Act, an application must be brought before the Collector only if the -original mortgage-debt does not exceed Rs. 500. Learned Counsel has argued that the learned District Judge was not right in splitting up the original mortgage-debt and in trying to find out whether the shares of the applicant would be more or less than Rs. 500. To my mind, the argument is correct. Section 10 of the Act provides that if the principal money secured does not exceed Rs. 500 the application is to be filed before the Collector. The principal money secured in this case was Rs. 3800 and on the ordinary meaning of the section it is impossible to say that what it contemplated was that the share of the applicants alone was to be taken into consideration. Even if the shares of the applicants did not exceed Rs. 500 the principal money secured exceeded Rs. 500. The mortgage-deed dated 24th October 1893 was one transaction and it was for Rs. 3800. It is impossible to split it up and to hold that the share of each mortgagor must be considered separately and the mortgage treated as consisting of several mortgages. Even that would not help the objectors as the original mortgagors were only six and presumably they had each borrowed an equal sum which would, therefore, be in excess of Rs. 500 each. To be able to succeed, the objectors would have to urge that the mortgage must be split up further into as many mortgages as there are heirs and the amount due from each must be deemed as a separate debt. It is argued that as the integrity of the mortgage was broken each of the applicants must be deemed to be entitled to redeem a separate mortgage where the property mortgaged was his share of the property and the sum secured was his share of the mortgage liability. The logical conclusion of this argument would be that each heir of the mortgagor would have to file a separate suit or application under Section 12 of the Act for redemption. It may be that when the integrity of a mortgage is broken the rights and liabilities of each mortgagor are separate but there is still only one mortgage and 'the principal money secured' must mean the original sum for which the mortgage was executed. To my mind, the application was rightly filed in the civil Court. Learned Counsel for the respondents has argued that an application under Section 12 of the Act would lie only against the original mortgagee and not against a mortgagor who had redeemed the mortgage. This point had arisen before me in a case reported in Sonai Pasi v. Hira Lal : AIR1944All193 and I have already expressed my views against him. I see no reason to change that view. This application must, therefore, be allowed and the case sent back to the lower appellate Court for decision according to law, and I order accordingly. The applicants will be entitled to their costs in this Court.


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