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Ram Dulare and ors. Vs. Sahdeo and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All189; 83Ind.Cas.188
AppellantRam Dulare and ors.
RespondentSahdeo and ors.
Excerpt:
- .....out of a suit brought by the plaintiffs-appellants for the recovery of possession of a fixed-rate holding, measuring 8 bighas 18 biswas situated in the village bisora khurd with mesne profits for the throe years preceding the suit. it appears that bisheshar and durga were brothers, who owned 22 bighas 10 biswas of a fixed rate holding in the village misrapura, and 17 bighas 1 biswas of a fixed rate holding in the village bisora. durga died, leaving a widow mt. maheaha. bisheshar died next, leaving a widow mt. neola. the plaintiffs are the song of the daughters of bisheshar by mt. neola. their allegation was that bisheshar and durga lived separately; but the courts below found that they were joint. anyhow the fixed rate tenancies in question were held after the deaths of durga and.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit brought by the plaintiffs-appellants for the recovery of possession of a fixed-rate holding, measuring 8 bighas 18 biswas situated in the village Bisora Khurd with mesne profits for the throe years preceding the suit. It appears that Bisheshar and Durga were brothers, who owned 22 bighas 10 biswas of a fixed rate holding in the village Misrapura, and 17 bighas 1 biswas of a fixed rate holding in the village Bisora. Durga died, leaving a widow Mt. Maheaha. Bisheshar died next, leaving a widow Mt. Neola. The plaintiffs are the song of the daughters of Bisheshar by Mt. Neola. Their allegation was that Bisheshar and Durga lived separately; but the Courts below found that they were joint. Anyhow the fixed rate tenancies in question were held after the deaths of Durga and Bisheshar by their widows Mt. Mahesha and Mt. Neola. Mt. Mahesha died in April, 1893. Mt. Neola died in 1912. They had in their lifetime mortgaged 2 bighas 19 biswas of land in the village Misrapura, it is said, with possession in favour of Bindeshri on the 20th October, 1885. They had similarly mortgaged 3 bighas 10 biswas of land in the village Bisora with possession in favour of Dhanpat in 1891. The remainder of the fixed-rate holding in either place was in their possession.

2. In 1892 zemindars of the village Misrapure filed a suit for arrears of rent for 1297 to 1299 Fasli in respect of the fixed rate holding situated in the village Misrapura, including the land mortgaged with Bindeshri, and obtained a decree for Rs. 58-1-6 to which Bindeshri and both the ladies were parties. It is alleged that a portion of the above arrears was due in respect of the land mortgaged with Bindeshri and the rest was about the remainder of the fixed-rate holding in that village, which was held by the ladies. Neither the mortgagee nor the ladies, took any steps to pay the decretal money. The result was that the zemindars got the mortgagees and the ladies ejected from the entire fixed-rate holding in the village Misrapura under Section 35 of the N.W.P. Rent Act (XII of 1881) and also took steps to realise the decretal money by the arrest of the mortgagee. The mortgagee then paid Rs. 76-2 to the zemindars and secured his release; but he did not do so till after the ladies and he himself had been ejected from the fixed-rate holding including the portion which was included in the mortgage.

3. Bindeshri next filed a suit for the recovery of the money paid by him to the zemindars against Mt. Neola as Mt. Mahesha had died meanwhile. That suit was decreed ex parte; and in execution of that decree he brought 17 bighas 1 biswa of the fixed-rate holding situated in the village Bisora to sale, and purchased it himself. In other words he discharged by that method a liability a portion of which was, at all events, due by himself.

4. The present suit has been filed by the plaintiffs to get rid of the auction-sale and to recover 8 bighas 18 biswas out of the fixed-rate holding, which was sold by auction and purchased by Bindeshri, the father of the present contesting defendants, on the 21st May, 1896. The original mortgage deed, said to have been executed by Mt. Mahesha, and Mt. Neola in favour of Bindeshri on the 20th October, 1885, has not been filed nor proved, and in the absence of anything to show that there was a contract to the contrary it was the duty of Bindeshri, the mortgagee, under Section 76, Clause (c) of the Transfer of Property Act (IV of 1882), to pay any rent or other charges which fell due in respect of the mortgaged property after the date of mortgage. If he did not pay those arrears the zemindars rightly made him a party to the suit for the recovery of those arrears and they were equally justified in ejecting him from the mortgaged land and seeking to recover' the decretal money by his arrest and imprisonment. He was not, however, liable for the arrears of rent, if any, which were due in respect of that portion of the fixed-rate holding which was not mortgaged with him, and he was entitled to recover what he had paid on that account from Mt. Neola or her successors-in-interest.

5. There are no materials on the record to indicate, how much of the rent-decree was due in respect of the mortgaged portion, and how much was due in respect of the portion which was not covered by the mortgage. Had the mortgagee paid the money when the notice was issued to him under Section 35 of the N.W.P. Rent Act (XII of 1881) the holding would have been saved, and he would have been entitled, in equity, to recover from the ladies the amount which he would have paid on their account. He did not, however, do so, and waited till the zemindars took steps to execute the decree by his arrest. He could not in those circumstances have sued to recover that portion of the amount which he was liable to pay himself as a mortgagee of a portion of the holding.

6. The rest of the decree for arrears of rent would, however, be binding on the ladies and also their successors-in-interest, namely, the present plaintiff's, and as held in Jhari Koer v. Bijai Singh A.I.R. 1924 All. 109 a valid sale could be effected to satisfy that liability. This learned Counsel for the plaintiffs-appellants relies on the decisions in Kristo Gobind Mazumdar v. Hem Chander Choudhury (1889) 16 Cal. 511 and Bisheshar Das Des v. Kaval Kumar Dat (1912) 17 C.W.N. 337 and his contention is that the sale aforesaid will be deemed to have passed only the life-interest possessed by Mt. Neola. The decisions in those cases were, however, based on the provisions of the Bengal Tenancy Act, and the peculiar circumstances there established; and they cannot be regarded as an authority for the proposition that in all cases decrees for arrears of rent must necessarily be treated as a personal liability. The entire tenure was liable to be lost to the family for the non-payment of the arrears decreed in process of execution partly by sale and partly by ejectment. The entire liability cannot, therefore, be regarded as personal. As the materials on the record are not sufficient to determine the extent of that liability, the lower Appellate Court is directed to determine, after taking such additional evidence as the parties may adduce, how much of the debt for the payment of which the property in dispute was sold, was binding on Mt. Neola and Mt. Mahesha or on their reversionary heirs.

7. Three months' time will be allowed for the return of the finding and ten days will be allowed after the return of the finding for filing objection.


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