Lindsay and Sulaaiman, JJ.
1. We think that on the main question decided in the court below the judgment of the Subordinate Judge is correct. The suit was a suit brought by two persons, Jesri Singh and Tulshi Singh, who alleged themselves to be the presumptive reversioners of one Gaya Din Singh who died some time ago and was succeeded by his widow Musammat Sonkali.
2. On the 7th of February, 1914, Musammat Sonkali, the widow of Gaya Din, executed a gift by which she purported to transfer the entire estate left by her husband in favour of Jagannath Singh who is also one of the presumptive reversioners.
3. Jagannath Singh was impleaded in this litigation as defendant No. 1. He has since died and is now represented by his descendants.
4. The case for the plaintiffs was that this deed of gift was an invalid document and they prayed for a declaration of its invalidity as against them after the death of the executant Musammat Sonkali.
5. Jagannath Singh and certain other reversioners who were impleaded as defendants put up the defence that this deed had been executed with the consent of the plaintiffs. Some of the defendants who are reversioners gave evidence to this effect; but the learned Judge of the court below has refused to believe them, and we think, having regard to all the circumstances, that he was perfectly right. The document itself does not refer to any consent given by the other reversioners. On the contrary, the gift purports to have been made by Musammat Sonkali in favour of Jagannath in consideration of services which Jagannath Singh had rendered to her. We have already adverted to the fact that the gift comprised the entire estate which was left by Musammat Sonkali's husband.
6. One of the plaintiffs, Jesri Singh died while the suit was pending. The other plaintiff, his brother Tulshi Singh, gave evidence in the case and denied that he had ever given any consent to the execution of this deed of gift. We may also mention another circumstance which is of some importance. In the year 1916 some other reversioners, one of whom was Khunkun Singh, brought a. suit for a declaration of the invalidity of this very same document. At page 24 of the paper book we find the written statement of Jagannath whicn was filed by way of defence in that case. Not a word was said there about the consent of the other reversioners, and we think it may rightly be inferred that this defence of consent was an after-thought. On the whole, we are quite satisfied that there was no consent and that the plaintiffs' suit was not barred on this ground.
7. There is, however, one other matter to be considered. It is proved that while Gaya Din Singh was still alive two usufructuary mortgages were executed by his mother in favour of certain mortgagees. One of these mortgages was for Rs. 40 and the other for Rs. 948.
8. This latter mortgage was in favour of a number of persons, including the plaintiffs in the present suit, and it was stated by Tulshi in his evidence that he and his brother Jesri Singh were in possession of the entire mortgaged property under this latter mortgage of Rs. 948.
9. It is proved that after the deed of gift was executed in favour of Jagannath he redeemed this mortgage. That fact is admitted by Tulshi Singh and is also proved by the evidence of one Mahabir Singh.
10. In the court below the defendant Jagannath pleaded that if the plaintiffs were found to be entitled to the declaration they were seeking, that declaration ought to be qualified with some provision for Jagannath's interests. Jagannath Singh pleaded that having freed the family property from these mortgages he should be held entitled to be reimbursed by the reversioners who may eventually become entitled to actual possession of the property. The learned Judge of the court below thought there was no need to make any declaration in favour of Jagannath.
11. The point has been argued at great length before us and we find that a similar case came before a Bench of this Court, Ghanskam Singh v. Tej Bahadur Singh (1911) 9 A.L.J. 496. In that case the learned Judges refused to make a declaration in favour of the defendant such as was (sic) here by Jagannath and is now sought by Jagannath's legal representatives.
12. We think, however, that there is one fact which distinguishes the case we are now dealing with from the case just referred to. The mortgagees who have been redeemed are the plaintiffs themselves, and it certainly appears to us that there can be no injustice in declaring in the present suit that in the event of these plaintiffs surviving Musammat Sonkali and becoming entitled to immediate possession of the property they ought not to be allowed to get possession from Jagannath or his legal representatives without paying their proportionate share of the mortgage debts. This equitable principle was recognized in the case reported in Vol. 22, Weekly Reporter, Civil Rulings, p. 409 (Moulvie Mohamed Shumsool Hooda v. Shewukram). That was a case decided by their Lordships of the Privy Council.
13. While we hold therefore that the judgment of the court below is correct and that the decree should stand we think it proper to modify the decree by inserting the following declaration, namely, that in the event of the present plaintiffs surviving Musammat Sonkali they will only be entitled to actual possession of their share of the property which was mortgaged on payment to Jagannath or to Jagannath's legal representatives of their quota of the mortgage debt. With this variation in the decree of the court below we dismiss this appeal.
14. Parties will pay their own costs.