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Baijnath Singh and anr. Vs. Jagan Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberAppln. No. 14 of 1943
Judge
Reported inAIR1952All426
ActsDebt Law; Uttar Pradesh Agriculturists' Relief Act, 1934 - Sections 23
AppellantBaijnath Singh and anr.
RespondentJagan Nath and ors.
Appellant AdvocateHyder Husain, Adv.
Respondent AdvocateNaimatullah and Inayatullah, Advs. for Nos. 1, 2(a), 2(b), 3 to 7 and ;Kamla Krishna, Adv. for Nos. 2(c) and 2(d)
DispositionApplication dismissed
Excerpt:
property - transfer of appeal - section 23 of u. p. agriculturists' relief act, 1934 - whether district judge can transfer an appeal to a civil judge - held, amendment in the act, therefore, order to transfer appeal is not bad in law. - orderkidwai, j. 1. laiq singh and teja singh executed a mortgage deed in favour of gillu mal to secure a loan of rs. 470 9 0. the property mortgaged consisted of some plots in village hardoi. the whole family of laiq singh and teja singh, who was nephew of laiq singh, became extirct and mt. parbati, widow of teja singh, entered into possession of his property. on 7-11-1926, mt. parbati made a gift of some property to her daughter's son, baijnath. on 25-11 1941, baijnath, along with one puttu, who claimed to be the sister's son of teja singh and as such an heir of teja singh, made an application under section 12, u. p. agriculturists' belief act to the revenue court at hardoi. they claimed that they were the legal representatives of the original mortgagors and that the entire mortgage.....
Judgment:
ORDER

Kidwai, J.

1. Laiq Singh and Teja Singh executed a mortgage deed in favour of Gillu Mal to secure a loan of Rs. 470 9 0. The property mortgaged consisted of some plots in village Hardoi. The whole family of Laiq Singh and Teja Singh, who was nephew of Laiq Singh, became extirct and Mt. Parbati, widow of Teja Singh, entered into possession of his property. On 7-11-1926, Mt. Parbati made a gift of some property to her daughter's son, Baijnath. On 25-11 1941, Baijnath, along with one Puttu, who claimed to be the sister's son of Teja Singh and as such an heir of Teja Singh, made an application under Section 12, U. P. Agriculturists' Belief Act to the Revenue Court at Hardoi. They claimed that they were the legal representatives of the original mortgagors and that the entire mortgage money had been paid off out of the usufruct of the property. They accordingly prayed for a decree for redemption without payment.

2. The trial Court found that the applicants were the legal representatives of Laiq Singh and Teja Singh and that the entire mortgage money had been paid off. It accordingly decreed the suit.

3. The mortgagee went up in appeal and the mortgagors filed cross-objection with regard to a particular item of income which was found against them. The District Judge transferred the case to the Civil Judge of Hardoi for disposal. The learned Civil Judge held that it was not established that Puttu was the sister's son of Teja Singh or that, at the time of the death of Mt. Parbati there waa no nearer heir of Teja Singh alive. With regard to Baijnath it was held that it was not established that the property which was transferred to him by Mt. Parbati was the pro. perty which included the mortgaged property. He accordingly held that neither of the two applicants had any right to present an application for redemption, and he allowed the appeal and dismissed the application.

4. Baijnath and Puttu have come up in revision. Their learned counsel has contended :

(1) that the decision of the Civil Judge was without jurisdiction since the District Judge had no power to transfer the appeal to the Civil Judge for disposal and

(2) that it is established that the deed of gift in favour of Baijnath covered part of the property in suit.

5. With regard to the first contention the learned counsel relied upon Samujh Kurmi v. Dwarka Singh 1948 Oudh W. N. 380. Since that decision was given, the Agriculturists' Relief Act has been amended by the Legislature by Act 42 of 1948and a note has been added to Section 23 of the Act which states as follows :

'Any appeal preferred under Section 23 of the Principal Act transferred to any Additional District Judge, Civil Judge or Additional Civil Judge and disposed of and any order made, by such Judge shall be deemed to be and always to have been duly and validly transferred, disposed of and made, as the case may be, as if this Act had been in force.'

Thus no objeation can bo taken to the Civil Judge having disposed of the appeal.

6. (His Lordship considered the deed of gift and continued). In these circumstances there is no evidence on the record to show that the property covered by the deed of gift included the property which is in possession of the opposite parties as mortgagees. No other title was relied upon by Baijuath. In these circumstances it cannot be said that the finding of the lower appellate Court that Baijnath had not proved himself to be the legal representative of the mortgagors is in any way incorrect. This application fails and is dismissed with costs.


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