1. The appeal was originally filed by two ladies Kishun Piari and Sundar Kishen Piari has died, and nobody has been brought on the record in her place. So the appeal has abated to that extent. The other appellant is Mt. Sunder, and her contention is that she has a right of residence in the property ordered to be sold, and we have to consider how far this contention is correct.
2. The fasts appear to be these. Bishun Lal, defendant 1, is related to the other defendants in this way His wife was Kamdebi by whom Bishuu Lal has a daughter Mt. Kamla, defendant 2. Mt. Kiahen Piari, the deceased appellant and defendant 3, was the sister of Bishan Lal. Defendant 4, Mt. Sundar, is the mother o Biahen Ll. Bishan Lal mortgaged the house in question for a sum of Bs. 5,000 in favour of the plaintiff by the mortgage of 2nd March 1929. Then he made a gift of the house in favour of his wife, hi-3 sister and mother. Thereafter, concealing the fast that ha had made a gift; of the property, Bishun Lal borrowed further money on promissory note? from the plaintiff. It was eventually agree that for the further advance of Rs. 1,400 Bishun Lal, his mother, his sister and his wife should give a second mortgage over the property, and this mortgage was executed on 19th April 1926. Ramdebi being dead, her daughter Mt. Kamla, has been brought on the record.
3. The plaintiff claimed two sums of money, namely Rs. 7,059-12 3 on the first mortgage and Rs. 1,949-5-0 on the second mortgage. The two mortgages being distinct and the executants not being the same it was not quite correct on the part of the plaintiff to ask for a joint decree in respect of the joint sum of Rs. 9,003-1-3. Several defences were raised to the suit by Mt. Kishun Piari and Mt. Sundar. They having failed, the learned Subordinate Judge made a decree jointly on the two mortgages for a sum of Rs. 10,000 odd which includes interests and costs.
4. Mr. Kishun Piari and Mt. Sundar appalled against the whole decree, but they failed to pay the court-fee due on the amount decreed. The appeal was accordingly confined to the right of residence, it any of Mt. Sundar. We have, therefore to take id that the two mortgages have been prove to hive been made for consideration and are binding on the mortgagors and their representative's. The argument before us is that Mt. Sundar has a right of residence in her husband's house and that right cannot be taken away by her son executing a mortgage. The right of residence that does exist in Mt. Sundar was recognized by the Court below, but the learned Judge stated that the question did not arise at that stage of the proceedings.
5. The fact that Mt. Sundar took a gift from her son cannot impair her right of residence. If the second mortgage be paid off, Mt. Sundar's right of residence in the house would remain unaffected by the earlier mortgage of 2nd March 1926. We are of opinion that the mortgage decree as given by the Court below should be split up and the two amounts separately payable under such decree should be shown. It would be open to the parties to the second mortgage to pay it off if they be so advised, and leave the plaintiff to bring the property to sale on the first mortgage. If this happens, the mother, Mt. Sundar, would be entitled to claim, as against the auction-purchaser a right to reside in a suitable portion of the house, having regard to the nature of the property and her requirements. In view of these considerations, we modify the decree of the Court below as follows:
A fresh decree will be prepared in this Court which will state separately the amount due on each of the mortgages up to six months from this date which we fix for payment. Bach mortgage will carry interest at the stipulated rate up to the said six months and thereafter at 6 per cent per annum. A decree will be framed under Order 34, Rule 4, Civil P.C. costs being calculated proportionately to each item decreed. Thus the amount which would be proportionate to the larger amount of the decree will be added to that amount and the smaller portion of the costs to the smaller amount. If Mt. Sundar or any of the other defendants pay off the mortgage, Mt. Sundar will have a right of residence in the house or such portion of it as may be suitable. The question as to what portion of the house, the right of Mt. Sundar's residence should be confined, will be determined by the Court executing the decree after the sale has taken place. If the second mortgage is paid off, the property will be sold in execution of the first mortgage alone. Having regard to the facts of this case, we direct that the parties will pay their own costs of this appeal and the order as to costs in the Court below will stand subject to the modification indicated above.