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Hasan Ali Khan Vs. Azharul Hasan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in48Ind.Cas.367
AppellantHasan Ali Khan
RespondentAzharul Hasan and ors.
Excerpt:
mortgage of entire interest in sixteen-annas mahal - groves, whether included in mortgage. - .....appeal may be shortly stated as follows : one ali mazhar having become the owner of the sixteen-anna mahal mortgaged the same to the plaintiff's pre-decessor. the mortgage is most comprehensive in its terms, the mortgagor purporting to mortgage his entire interest without any sort of reservation. a decree was obtained on foot of this mortgage the property was sold and purchased by the plaintiff or his predecessor. the pre-sent suit is brought to recover certain fractional shares in three groves. it appears that prior to the mortgage which we have mentioned above, ali mazhar obtained decrees against certain persons who had certain rights as grove-holders. in execution of these decrees he put up to sale the interest (whatever it was) of the grove holders and purchased it himself the.....
Judgment:

1. The facts connected with this appeal may be shortly stated as follows : One Ali Mazhar having become the owner of the sixteen-anna Mahal mortgaged the same to the plaintiff's pre-decessor. The mortgage is most comprehensive in its terms, the mortgagor purporting to mortgage his entire interest without any sort of reservation. A decree was obtained on foot of this mortgage The property was sold and purchased by the plaintiff or his predecessor. The pre-sent suit is brought to recover certain fractional shares in three groves. It appears that prior to the mortgage which we have mentioned above, Ali Mazhar obtained decrees against certain persons who had certain rights as grove-holders. In execution of these decrees he put up to sale the interest (whatever it was) of the grove holders and purchased it himself The argument put forward on behalf of the defendants is that this interest was an interest separate altogether from the Zemindari and it did not form portion of the, mortgaged property, and consequently did not pass to the plaintiff when he purchased under the mortgage decree. It seems to us that this contention is not sound. We have already mentioned that the acquisition of the grove-holders' interest was prior to the mortgage and we have referred to the terms of the mortgage deed. There was no reason of any kind why the interest of the grove holders should not merge in the inheritance. Ali Mazhar was the sole owner of the sixteen anna Mahal. At that time there was no reason why it would in any way be for the benefit of Ali Mazhar to keep outstanding the interest of the grove-holders. It is absolutely clear under the circumstances of the present case that the interest of the grove holders, purchased and acquired by Ali Mazhar, merged in his estate as Zemindar. Furthermore, the very terms of the mortgage-deed are quite wide enough to include and comprehend every interest that he possessed at the date of the mortgage in the sixteen-anna Mahal which he sold. We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts.


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