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Manni Ram Vs. Bishan Dial and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All297
AppellantManni Ram
RespondentBishan Dial and anr.
Excerpt:
mortgage - foreclosure--regulation xviii of 1806. - .....in 1844, leaving a widow, ram kuar, and three sons, sheo dial, gulab rai, and bishan dial. in 1864 sheo dial, who appears to have managed the business of the family in the absence of his brothers, of whom one, bishan dial, was residing at lucknow, and the other, gulab rai, at cawnpore, desired to raise a loan of rs. 13,000, in order to pay off the sums due to daula kuar and others, decree-holders, who were in possession of mauza barauli and mauza darjanpur, and for other necessary purposes; and in order to raise the sum required, bishan dial, on the 23rd august 1864, executed a power-of-attorney authorizing sheo dial to take a loan from any person he pleased, and to execute and register in the name and on behalf of bishan dial 'a mortgage deed' for rs. 13,000 in respect of mauza barauli......
Judgment:

1. Sarab Sukh Rai, the original proprietor of mauza Barauli, died in 1844, leaving a widow, Ram Kuar, and three sons, Sheo Dial, Gulab Rai, and Bishan Dial. In 1864 Sheo Dial, who appears to have managed the business of the family in the absence of his brothers, of whom one, Bishan Dial, was residing at Lucknow, and the other, Gulab Rai, at Cawnpore, desired to raise a loan of Rs. 13,000, in order to pay off the sums due to Daula Kuar and others, decree-holders, who were in possession of mauza Barauli and mauza Darjanpur, and for other necessary purposes; and in order to raise the sum required, Bishan Dial, on the 23rd August 1864, executed a power-of-attorney authorizing Sheo Dial to take a loan from any person he pleased, and to execute and register in the name and on behalf of Bishan Dial 'a mortgage deed' for Rs. 13,000 in respect of mauza Barauli. On the 13th September 1864, Sheo Dial, on his own behalf and as attorney for Bishan Dial, executed a deed of mortgage of mauza Barauli for the sum above-mentioned in favour of Gobind Parshad, Swami Lal, and Kashi Parshad, for a term of seven years, subject to the following condition, viz., that the mortgagors should, at the expiry of the term named, redeem the mortgage by re-payment of the Rs. 13,000, and the interest left unpaid. After this mortgage was registered, and the money paid to Sheo Dial, the mortgagees appear to have discovered that Gulab Rai had a share in the estate, and required that he also should join in the mortgage. Accordingly, on the 9th November 18G4, Gulab Rai executed a powers-attorney in favour of Sheo Dial, in which, after reciting that Sheo Dial, had executed the mortgage of the 13th September, and had registered it, and that he had received and deposited the loan in the Government Treasury on account of all three brothers, Gulab Rai declared that he agreed and consented to the proceedings of his brother thereinbefore recited, and that lie accordingly appointed his brother his attorney that he might execute 'a deed of mortgage on his part also in respect of mauza Barauli in favour of the mortgagees, and under conditions similar to those recorded in his own deed.' On the 13th December Sheo Dial, for himself and as the attorney of his brothers, executed another deed of mortgage in favour of the same mortgagees. The deed recites the mortgage of the 13th September, that Gulab Rai had been no party to it, and that consequently the mortgagees were not content with that deed, and declares that the deed now in recital had been executed in lieu of the deer! above-mentioned. By this deed Sheo Dial mortgaged the same property for the same sum as in the former deed, but with this difference, that the mortgagors bound themselves to pay compound interest on all arrears of interest, and that whereas the former deed was a deed of simple mortgage accompanied with provisions enabling the mortgagees, in the event of default, to convert it into a mortgage with possession, in the substituted deed the mortgagees are also empowered, in the event of default, to treat the simple mortgage as a conditional sale and to obtain foreclosure. In April 1865 Gobind Parshad, Swami Lal, and Kashi Parshad executed a sub-mortgage of the property to Girdhari Lal and lagan Nath. Default having been made in payment of the sum due on the suh-mortgage, Chotai Lal, son of Girdhari Lal, and lagan Nath, in May 1872, sued the original mortgagees and obtained decrees in execution of which they brought to sale the mortgagees' rights, and became each a purchaser of one moiety. In August 1872, Chotai Lal sold his moiety to the respondent. It appears that, on Sarah Sukh Rai's death, the estate of Barauli was recorded in the revenue registers as held by his widow and three sons in equal shares of four annas. It is alleged, nevertheless, that they remained a joint Hindu family. On the 4th December 1859, Sheo Dial mortgaged his share, described as a 5-anna 4-pie share, to liar Sahai, whose son, Raj Bahadur, obtained a decree on the mortgage-deed on April 15th, 1802. In execution of the decree, and of another decree held by one liar Dial for Daula Kuar, the 4-anna share standing in his name in the revenue registers was sold on the 20th July 1867, and purchased by Suraj Parshad. Sheo Dial died in 1866, and if the family was joint, his brothers obtained Ins interest by survivorship. If the family was not joint, it devolved on his daughter. On the 24th December 1867, Ram Kuar, the widow of Sarah Sukh Rai, executed a deed by which she professed to divide the 4-anna share standing in her name, and to transfer a 2-anna share to Lalta Parshad, the son-in-law of Sheo Dial, and the remaining 2-anna share to Har Parshad, son-in-law of Gulab Rai.

2. The respondent having, as has been stated, acquired the one moiety in the original mortgage purchased by Chotai Lal, in April 1873, issued notice of foreclosure in respect of one moiety of the mortgage, and on the expiry of the year of grace he has instituted four suits. In the first lie claims in virtue of the mortgage and foreclosure to obtain the possession of 4 annas out of the two shares of 4 annas each, which are still recorded in the names of Gulab Rai and Bishan Dial respectively. In the second, on the same title, he claims possession of a 2-anna sharo out of the 4-anna share purchased by Suraj Pars had. In the third, on the same title, he claims possession of a 1-anna share out of the 2-anna sharo standing in the name of Lalta Parshad, and in the fourth, on the same title, he claims possession of a 1-anna share out of the 2-anna share standing in the name of Har Parshad. A common objection was urged in the Courts below and in this Court that the foreclosure was invalid, in that a person entitled to one moiety of a mortgage-debt cannot require the mortgagees to pay off one moiety of the mortgage-debt or to stand foreclosed of one moiety of the mortgage-money. We must allow the validity of this plea. The whole of the mortgage-debt is due to the persons claiming undo the original mortgages jointly and not severally, and the mortgagors are entitled to a joint receipt for all sums they may pay in satisfaction of the debt; nor does the foreclosure law contemplate the issue of a notice of foreclosure in respect of a portion of the unpaid mortgage-debt, except under circumstances which do not exist in this ease. The notice must declare foreclosure if the whole of the subsisting debt is not paid before the expiry of the year of grace. We are, therefore, of opinion that these suits cannot be maintained, and in that opinion we are confirmed by a ruling of the Calcutta High Court--Bhora Roy v. Abilack Roy*. It is unnecessary to consider the other pleas raised in this and the connected appeals. The decrees of the Courts below are reversed and the suits dismissed with costs.

---------------------------------------Foot Note-------------------------

*10 W.R. 476; for circumstances justifying an exception to the rule that a suit must be a suit applicable to the whole property mortgaged, and a mortgagor is not to be held liable to a variety of suits and proceedings in respect of the different interests which the mortgagees may, as between themselves, possess, see Hunoomanpersaud v. Kaleepersaud Sahoo W.R. 1864 p. 25 and Indurjeet Koonwur v. Brij Bilas Lall 33 W.R. 139.


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