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Tameshwar Prasad Vs. Maharaj Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.114
AppellantTameshwar Prasad
RespondentMaharaj Singh and ors.
Excerpt:
mortgage with possession - redemption--duty of mortgagee. - .....ease. it is true that the defendants-respondents are so sharers in the mahal apart from the mortgaged share, it may be quite correct that after the mortgages of the 29th of may 1900 the mortgagors may have relinquished any ex-proprietary rights they had, but that is all beside the case. the defendants entered upon possession of these lands in their capacity as mortgagees under the mortgages of the 29th of may 1900. those mortgages have been redeemed and they are bound in law to return to the mortgagor the property which the mortgagor plated in their hands at the time of the mortgaee. the defendants nos. 1 to 3 cannot go behind this. even if it had been gopal narain and jwala parsad who had redeemed the mortgage, it is obvious that the defendants would have had to give up actual.....
Judgment:

1. The facts of the case out of which this appeal has arisen are as follows:

Gopal Narain and Jwala Prasad were the owners of 1 anna 7 gandas share in the village and also held certain sir lands appertaining to that share. On the 29th of May 1900 they gave a usufructuary mortgage of the share to the defendants No. 1 to 3, including in that mortgage all the sir lands appertaining to the share. On the same date they executed a similar mortgage in respect to plots Nos. 1370 and 200 in favour of the same persons as usufructuary mortgagees. On the 9th of November 1910 they gave a simple mortgage of their rights to Musammats Inderdei and Shama Kuar. On the 17th of October 1912 the plaintiff sued to pre-empt the mortgage of the 9th of November; he obtained a decree and formal possession; he then attempted to redeem the two usufructuary mortages. As the defendants-respondents would not accept payment of the money, he had to bring a suit for redemption and he obtained a decree and was formally put into possession, but the defendants respondents did not give up actual possession of the sir plots in the case. The plaintiff accordingly has brought a suit for actual physical possession of these plots. The Court of first instance has dismissed the suit. The lower Appellate Court has found that the plaintiff had redeemed the usufructuary mortgages of all the plots in suit except plot No. 1183, with which it said the plaintiff was not really concerned. The lower Court also held that the plaintiff was entitled to be put into possession of these plots, but in view of a decision reported as Muhammad Ibrahim v. Ram Kishun Bai 16 Ind. Cas. 487 : 10 A.L.J. 95 it held that it must be joint possession with the defendants. The plaintiff appeals, the defendants file cross-objections. It is quite clear that the decision in Muhammad Ibrahim v. Ram Kishun Bai 16 Ind. Cas. 487 : 10 A.L.J. 95 has nothing whatever to do with the present ease. It is true that the defendants-respondents are so sharers in the mahal apart from the mortgaged share, It may be quite correct that after the mortgages of the 29th of May 1900 the mortgagors may have relinquished any ex-proprietary rights they had, but that is all beside the case. The defendants entered upon possession of these lands in their capacity as mortgagees under the mortgages of the 29th of May 1900. Those mortgages have been redeemed and they are bound in law to return to the mortgagor the property which the mortgagor plated in their hands at the time of the mortgaee. The defendants Nos. 1 to 3 cannot go behind this. Even if it had been Gopal Narain and Jwala Parsad who had redeemed the mortgage, it is obvious that the defendants would have had to give up actual possession of these lands to those mortgagors. As it is, the plaintiff had a right of redemption and he has redeemed and he is entitled to step into the shoes of the original mortgagors and to have actual possession of the land. The decree for joint possession was, therefore, incorrect. So far as the objections are concerned, there is no force in view of the finding of the Court below that the plaintiff has redeemed both the mortgages of the 29th of May 1900. We, therefore, disallow the objections with costs. We allow the appeal and modify the decree of the Court below. The plaintiff's claim will be decreed in toto except in respect to plot No. 1183. The plaintiff will have his costs in all Courts, including in this Court fees on the higher scale.


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