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Abdul Wahab Vs. Raghunandan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All388
AppellantAbdul Wahab
RespondentRaghunandan Lal
Excerpt:
- - this condition he failed to comply with, with the result that the suit stood dismissed......115, civil p.c. the facts briefly are these : on 4th july 1903, two brothers, ayoob khan and sardar khan, granted a mortgage to the applicant before me, abdul wahab khan. this mortgage was a usufructuary mortgage and was for a sum of rs. 950. on 30th june 1927, ayoob khan sold his share in the two plots to the applicant, with the result that there was a coalition of the rights with regard to the share of ayoob and to that extent abdul wahab khan became full owner. this sale was pre-empted by sardar and the suit was decreed on 22nd february 1928. on 28th march 1929, sardar sold his rights to raghunandan, the opposite party. raghunandan obtained formal possession on 11th august 1930. in 1936 he brought a suit for redemption, which was granted on the usual condition of depositing a.....
Judgment:
ORDER

Sinha, J.

1. This is a revision under Section 115, Civil P.C. The facts briefly are these : On 4th July 1903, two brothers, Ayoob Khan and Sardar Khan, granted a mortgage to the applicant before me, Abdul Wahab Khan. This mortgage was a usufructuary mortgage and was for a sum of Rs. 950. On 30th June 1927, Ayoob Khan sold his share in the two plots to the applicant, with the result that there was a coalition of the rights with regard to the share of Ayoob and to that extent Abdul Wahab Khan became full owner. This sale was pre-empted by Sardar and the suit was decreed on 22nd February 1928. On 28th March 1929, Sardar sold his rights to Raghunandan, the opposite party. Raghunandan obtained formal possession on 11th August 1930. In 1936 he brought a suit for redemption, which was granted on the usual condition of depositing a certain amount within a certain time. This condition he failed to comply with, with the result that the suit stood dismissed. In 1943 he made an application for redemption under Section 12, U.P. Agriculturists' Relief Act, which has given rise to the present application in revision. The learned Munsif held that the applicant was entitled to redemption only of the share of Sardar Khan still in the hands of Abdul Wahab Khan, but not with regard to the share of Ayoob. The learned civil Judge of Bulandshahr held that the suit ought to have been decreed in its entirety. The mortgagee has come before me in civil revision. A preliminary objection has been taken to the hearing of this civil revision on the ground that, even if the Court below made an error it was only an error of law and a revision under Section 115, Civil P.C. is incompetent. It has been held by a Bench of this Court in Hafiz Abdul Noor v. Sahu Brijmohan Saran : AIR1938All153 that a wrong interpretation of a provision of law would, in certain cases, amount to a material irregularity and this Court could interfere in revision. In the view which I take of this case, Raghunandan was entitled to redeem only the share of Sardar Khan and the decree of the learned Judge of the Court below deprives the applicant of a portion of the property in his hands which cannot and ought not to be taken away from him in these proceedings.

2. On the facts, which I have mentioned above, the effect of the purchase by Abdul Wahab on 30th June 1927, was to make him the full owner of the half share of Ayoob. This sale was made in discharge of the liability of Ayoob arising out of the mortgage. When Sardar obtained his decree for pre-emption he became immediately entitled to obtain possession of the property. If he obtained possession soon after, i.e., within a year or so of the date of the decree, the present suit, brought after 12 years of that date, is obviously barred by limitation. It was held in Sita Ram Dube v. Ram under Prasad : AIR1928All412 that:

Where possession has been delivered to a purchaser in execution, in accordance with law, that would, as between the parties to the proceedings for delivery of possession, give a new start for the computation of limitation and the possession of the defendant (i.e., the judgment-debtor) would be deemed to be a fresh invasion of the plaintiffs' rights and a new trespass upon the property.

3. If no application for formal possession was made, the position is the same, if not worse. His right to obtain possession accrued on 28th March 1929. That right could be availed of only for 12 years and not after. That right is now extinguished. It has been contended very strongly by the learned Counsel for the opposite party, Mr. Chandra Bhan Agarwal, that Section 60, T.P. Act, entitled him to redeem the whole of the mortgage. It must be borne in mind ' that the principle forbidding piecemeal redemption exists primarily for the benefit of the mortgagee. The applicant is entitled to say that:

When the integrity of a mortgage has been broken up upon the purchase by the mortgagees of the equity of redemption in a portion of the mortgaged property, the right of redemption of each of the several mortgagors is confined to his own interest in the mortgaged property; he cannot redeem the remainder of the mortgaged property against the wishes of the mortgagees:' vide Munshi v. Daulat ('07) 29 All. 262.

4. That the integrity of the mortgage was broken after the purchase by Abdul Wahab of the share of Ayoob on 30th June 1927, can admit of no doubt. That Abdul Wahab was, thereafter, entitled to say that Sardar or his transferee can represent only his own share and not the entire mortgage, can equally admit of no doubt. The case may be considered from yet another point of view. The present is a suit for redemption. What the plaintiff, as a representative of Sardar, is entitled to is to claim redemption with respect to the rights of his transferor and no more. Any other question must, from this point of view, be foreign to the scope of the suit.

5. I, therefore, allow this application in revision and set aside the order of the lower appellate Court and restore that of the Court of first instance with costs throughout.


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