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Sham NaraIn and anr. Vs. Sahai Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All142
AppellantSham NaraIn and anr.
RespondentSahai Pandey and ors.
Excerpt:
.....9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - a condition of the mortgage being that the mortgagee should enjoy the profits in lieu of interest, and the mortgage should be redeemed on payment of the principal......on payment of the principal. after this, in the same year, ramzan sub-mortgaged the same four-anna share to the defendants (appellants) for rs. 2,351, retaining possession of the share himself. subsequently in 1276 fasli the owner of the property made a second mortgage of the same share to ramzan for rs. 1,600, on the same footing as to interest and enjoyment of rents as the first mortgage, the mortgage being redeemable on payment of the principal due on both mortgages, or a one-anna one-pie share of the estate being redeemable on payment of a proportionate amount of the debt. ramzan in 1281 fasli sold his interest under this second mortgage to the plaintiffs for rs. 1,800, but as has been found retained possession of the mortgaged share. the defendants in 1279 fasli (i.e. 1872.....
Judgment:

Oldfield, J.

1. The facts found are these: The owner of the property in suit, a four-anna share in a certain mauza, mortgaged it to Ramzan in 1272 fasli for Rs. 4,400 and put the mortgagee in possession; a condition of the mortgage being that the mortgagee should enjoy the profits in lieu of interest, and the mortgage should be redeemed on payment of the principal. After this, in the same year, Ramzan sub-mortgaged the same four-anna share to the defendants (appellants) for Rs. 2,351, retaining possession of the share himself. Subsequently in 1276 fasli the owner of the property made a second mortgage of the same share to Ramzan for Rs. 1,600, on the same footing as to interest and enjoyment of rents as the first mortgage, the mortgage being redeemable on payment of the principal due on both mortgages, or a one-anna one-pie share of the estate being redeemable on payment of a proportionate amount of the debt. Ramzan in 1281 fasli sold his interest under this second mortgage to the plaintiffs for Rs. 1,800, but as has been found retained possession of the mortgaged share. The defendants in 1279 fasli (i.e. 1872 A.D.) sued Ramzan on the mortgage in their favour and obtained a decree for its enforcement, and in 1877, in execution thereof, sold Ramzan's interest, which they themselves bought, and were put in possession of the share. The plaintiffs now seek to dispossess them by virtue of the right under the second mortgage made to Ramzan which they purchased.

2. On the facts found it appears to us that the defendants by reason of their interest as sub-mortgagees of the whole four-anna share under the first mortgage made to Ramzan, and as purchasers under the decree they obtained against him of his interest under the first mortgage, are entitled to possession of the property as mortgagees in preference to the plaintiffs, who have only obtained an assignment of the interest of Ramzan under the second mortgage made to him. We therefore reverse the decrees of the lower Courts, and decree the appeal and dismiss the suit with costs in all Courts.


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