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Sonai Pasi Vs. Hira Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All193a
AppellantSonai Pasi
RespondentHira Lal
Excerpt:
- - 2. the result of accepting the contention of learned counsel will be that a mortgagor who redeems a mortgage will be placed in a much better position than the mortgagee himself who was subject to all the liabilities under the agriculturists' relief act, and in case one mortgagor steps in and even without the consent of his other mortgagors redeems the entire mortgage, he will put the other mortgagor in a position of disadvantage as they will not be entitled to get the benefit of the agriculturists' relief act......appeal and dismissed the application of sonai and others on the ground that the mortgage after the redemption by mahadeo no longer subsisted and therefore the mortgagor's representatives had no right to file the present application under section 12, agriculturists' relief act. sonai and others have filed this revision and their objection is that the lower appellate court erred in dismissing the application under section 12, agriculturists' relief act, on the ground that it was not maintainable. on behalf of the opposite parties it was urged that section 12, agriculturists' relief act, has no application as section 12 relates to an application for redemption of a mortgage while in this case the mortgage no longer subsisted inasmuch as mahadeo, one of the mortgagor's representatives, had.....
Judgment:
ORDER

Malik, J.

1. This revision has been filed against an order of the lower appellate Court dismissing an application under Section 12, Agriculturists' Relief Act. On 18th September 1922, Baladin had executed a mortgage for Rs. 700 in favour of one Jagarnath. Baladin died and his rights came to his three sons, Subhaga, Khunai and Sonai. Mahadeo having purchased the one-fifth share in the property against a decree against Subhaga filed a suit for redemption of the mortgage of 18th September 1922, and redeemed the same and since then he has been in possession of the entire mortgaged property, one-fifth of which he holds as owner and four-fifths as mortgagee. Sonai and his two sons and Khunai, the mortgagor's representatives, filed an application under Section 12, Agriculturists' Relief Act and claimed that the entire amount due from them had been paid off out of the usufruct of the property and the property therefore should be allowed to be redeemed without payment of any sum. The trial Court framed several issues and granted the application on the finding that nothing was due from the plaintiffs to Mahadeo. I may mention here that Mahadeo died during the pendency of the application and he was succeeded by his two sons Hira Lal and Kandhaiya Lal, who are now opposite parties 1 and 2. Hira Lal and Kandhaiya Lal filed an appeal against the order passed by the learned Munsif and the learned Civil Judge allowed the appeal and dismissed the application of Sonai and others on the ground that the mortgage after the redemption by Mahadeo no longer subsisted and therefore the mortgagor's representatives had no right to file the present application under Section 12, Agriculturists' Relief Act. Sonai and others have filed this revision and their objection is that the lower appellate Court erred in dismissing the application under Section 12, Agriculturists' Relief Act, on the ground that it was not maintainable. On behalf of the opposite parties it was urged that Section 12, Agriculturists' Relief Act, has no application as Section 12 relates to an application for redemption of a mortgage while in this case the mortgage no longer subsisted inasmuch as Mahadeo, one of the mortgagor's representatives, had filed a suit for redemption, obtained a decree and redeemed the mortgage. Learned Counsel urges that it was true that by reason of Section 92, T.P. Act, Mahadeo had 'so far as regards the redemption, foreclosure, or sale of such property' the same rights as the mortgagee, but it cannot be said that the mortgage still subsisted and Section 12, Agriculturists' Relief Act, applied.

2. The result of accepting the contention of learned Counsel will be that a mortgagor who redeems a mortgage will be placed in a much better position than the mortgagee himself who was subject to all the liabilities under the Agriculturists' Relief Act, and in case one mortgagor steps in and even without the consent of his other mortgagors redeems the entire mortgage, he will put the other mortgagor in a position of disadvantage as they will not be entitled to get the benefit of the Agriculturists' Relief Act. The Agriculturists' Relief Act was enacted for the benefit of the agriculturist-debtors and to my mind Section 12 should be given such liberal interpretation as would not lead to these anomalies. It is true that the original mortgage dated 18th September 1922 was in favour of Jagarnath and it was redeemed by Mahadeo, one of the mortgagor's representatives. Mahadeo, however, was subrogated to the position of a mortgagee and the position of Mahadeo after the redemption was that of a mortgagee so far as the applicants Sonai and others were concerned. Under Section 12, Agriculturists' Relief Act, an application must be made for the redemption of a mortgage and the application has to be filed by the mortgagor or by his legal representatives. In this case there can be no manner of doubt that the application under Section 12 has been filed by the mortgagor and it purports to be an application for the redemption of a mortgage. The learned Counsel for the applicants, however, contends that the application is not for the redemption of the mortgage of 18th September 1922 but the application is for the redemption of the rights that Mahadeo acquired by reason of his having redeemed the mortgage dated 18th September 1922. It is true that Mahadeo was not the original mortgagee but by operation of law his position came to be exactly the same as that of Jagarnath with reference to the other mortgagors. All that has happened is that by operation of law the rights and interests of the original mortgagee have now come to Mahadeo. To my mind he is, so far as the right of the mortgagor to redeem is concerned, exactly in the same position as the original mortgagee. It may be that the mortgage amount will now have to be considered to be the amount that he paid under the decree for redemption, and he may be able to claim that he was not liable to render account previous to that date. The Court below, however, has not gone into any of these questions but has decided the appeal before it on the preliminary ground that the proceedings which were started under Section 12 were misconceived. I have already said that I see no principle on which it can be said that the mortgagors were entitled to the benefit under the Agriculturists' Relief Act only as against the original mortgagee and not against anybody else who, either by reason of transfer by the mortgagee or by reason of operation of law, was in the same position as the mortgagee. I am, therefore, of opinion that the appeal was wrongly allowed by the lower appellate Court. The Court did not, however, consider other questions raised by the objectors and had not gone into the question as to the amount if any, that was payable by the landlord-applicants. I, therefore, cannot dispose of the matter finally. I set aside the order passed by the lower appellate Court, allow this revision and remand the case to lower appellate Court for decision according to law. The applicants are entitled to the costs of this revision.


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