Skip to content


(Shah) Ram Chand Vs. Pt. Parbu Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1936All595
Appellant(Shah) Ram Chand
RespondentPt. Parbu Dayal and ors.
Excerpt:
- .....3 salempur, 4 phulaichi, 5 undhi, 6 matsena and 7 larhupur chakarpur. on 6th january 1882, nawal singh mortgaged villages 1, 2, 3 and 4 to bast ram and ram kishan for the sum of rs. 25,000. on 13th january 1893, nawal singh mortgaged villages nos. 1 and 7 to the ancestor of the plaintiff for the sum of rs. 10,000. on 24th june 1893, nawal singh mortgaged villages nos. 1, 2, 3, 4 and 5 to bast ram and ghasi ram, son of ram kishan. bast ram and ram kishan were the mortgagees under the mortgage of 6th january 1882. the mortgage consideration under the mortgage of 24th june 1893 was rs. 40,000. rs. 27,000 of this represented the amount due by the mortgagor to the mortgagees under the mortgage of 6th january 1882.2. nawal singh died in the year 1896 leaving a widow. his widow died in the.....
Judgment:

1. This is a plaintiff's appeal in a suit for redemption. The plaint as originally framed has been amended, and in the end the plaintiff sought the redemption of certain village which he had bought upon payment to a mortgagee of the sum of Rs. 12,894. The defendants demanded a sum of Rs. 59,500. The lower appellate Court has decreed the suit on condition that the plaintiff pay to the defendants the sum of Rs. 30,000. The property which the plaintiff seeks to redeem, is the village of Matamai in the district of Agra. One Nawal Singh was the owner of this village and six others, namely, 2 Sherpur, 3 Salempur, 4 Phulaichi, 5 Undhi, 6 Matsena and 7 Larhupur Chakarpur. On 6th January 1882, Nawal Singh mortgaged villages 1, 2, 3 and 4 to Bast Ram and Ram Kishan for the sum of Rs. 25,000. On 13th January 1893, Nawal Singh mortgaged villages Nos. 1 and 7 to the ancestor of the plaintiff for the sum of Rs. 10,000. On 24th June 1893, Nawal Singh mortgaged villages Nos. 1, 2, 3, 4 and 5 to Bast Ram and Ghasi Ram, son of Ram Kishan. Bast Ram and Ram Kishan were the mortgagees under the mortgage of 6th January 1882. The mortgage consideration under the mortgage of 24th June 1893 was Rs. 40,000. Rs. 27,000 of this represented the amount due by the mortgagor to the mortgagees under the mortgage of 6th January 1882.

2. Nawal Singh died in the year 1896 leaving a widow. His widow died in the year 1800. Nawal Singh's heirs on the death of the widow were Fateh Singh, defendant 5, and Tej Singh, the father of defendant 6. Fateh Singh and Tej Singh were nephews of Nawal Singh. On 31st March 1905, Fateh Singh and Tej Singh executed a usufructuary mortgage in favour of Ghasi Ram of the villages 1,4, 5 and 6 for the sum of Rs. 1,03,200. On 31st March 1905, Rs. 68,097-3-10 were due under the mortgage of 24th June 1893; Rs. 34,048-12-2 were due to the mortgagee under another bond and the sum of Rs. 1,054 was paid by the mortgagee to the mortgagors in cash. Under the provisions of this latest mortgage the mortgagors were given the option of redeeming villages Nos. 1 and 5 separately for the sum of Rs. 59,500 and the right of redeeming villages Nos. 4 and 6 separately for the sum of Rs. 43,700. If however the mortgagors wished to make a separate redemption under the provisions of the deed, they were bound to redeem villages Nos. 4 and 6 in the first place. Ghasi Ram, the mortgagee under the mortgage of 31st March 1905, died and was succeeded by his widow Mt. Ineha Kuar. She succeeded to the mortgage along with the widow of Ghasi Ram's brother.

3. In the year 1909, one Keshav Deo obtained a simple money decree against Mt. Incha Kuar and her sister-in-law. This decree he put into execution in 1910 and put up the mortgage of 31st March 1905 to auction. The mortgagee rights in villages Nos. 1 and 4 were purchased by Punna Lal and Peare Lal, defendants 1 and 2, for the sum of Rs. 13,000. The sale was effected on 20th December 1910 and confirmed in February 1911. After the sale Ghasi Ram's heirs, namely, Mt. Incha Kuar and her sister-in-law, remained in possession of the mortgagee rights in respect of villages Nos. 5 and 6 under the mortgage of 31st March 1905. Villages Nos. 4, 5 and 6 have been redeemed: No. 4 for the sum of Rs. 21,500, No. 5 for the sum of Rs. 29,500 and No. 6 for the sum of Rs. 22,200. In other words Rs. 73,200 due under the mortgage of 31st March 1905 have been repaid and villages Nos. 4, 5 and 6 have been released. The plaintiff now seeks to redeem village No. 1 and offers the sum of Rs. 12,894 for the release of the village from its liability under the mortgage of 31st March 1905. A suit was brought upon the mortgage of 13th January 1893, suit No. 50 of 1911. A decree was passed in this suit on 3rd August 1911 and the mortgaged property was sold and bought by the plaintiff on 22nd March 1923. The plaintiff bought village No. 1, but his purchase is subject to the prior charge created by the mortgage of 6th January 1882. It is a matter of admission that this charge was continued by the mortgages of 24th June 1893 and 31st March 1905.

4. The plaintiff on the one hand contends that he is liable only for a proportion of the balance of the sum due under the mortgage of 31st March 1905. The defendants upon the other hand contend that the plaintiff is liable for the whole balance, namely the difference between Rs. 103,200 and Rs. 73,200. Learned Counsel for the appellant contended that on 31st March 1905, when the usufructuary mortgage was executed, the liability, so far as village No. 1 was concerned, under the mortgages of 6th January 1882 and 24th June 1893, amounted to roughly Rs. 46,000. At moat therefore, he contends, the liability of village No. 1 is Rs. 12,894, which sum is arrived at by apportioning the liability of Rs 46,000 according to the respective values of villages 1, 4, 5 and 6 mortgaged under the mortgage of 31st March 1905. The value of these villages, learned Counsel contended, was proportionate to the amount of Government revenue payable in respect of each. The Government revenue in respect of village No. 1 was Rs. 800, in respect of village No. 2, Rs. 520, in respect of village No. 3, Rs. 800 and in respect of village No. 4, Rs. 690. The total amount of Government revenue payable in respect of the four villages is therefore Rs. 2,810. The share of the liability under the mortgage of 31st March 1905 to be borne by village No. 1, therefore, learned Counsel contended, was in the proportion of 800/2,810 of 46,000 (roughly). The exact sum representing the outstanding liability of village No. 1 under the mortgage of 31st March 1905 learned Counsel stated to be Rs. 12,894, the amount offered by the plaintiff for the release of village No. 1 from the mortgage liability under the mortgage of 31st March 1905.

5. Learned Counsel for the defendants upon the other hand contended, as already observed, that village No, 1 was liable for the whole of the outstanding balance due under the mortgage of 31st March 1905, that is, the difference between Rs 103,200 and Rs. 73,200, viz. Rs. 30,000, the sum which, the learned Subordinate Judge has directed, should be paid by the plaintiff before the property is released. The argument of learned Counsel for the defence was that under the mortgage of 6th January 1882 a certain liability was placed upon village No. 1, viz. the liability for the whole of the mortgage sum of Rs. 25,000 plus accumulating interest. This liability was continued in the mortgages of 24th June 1893 and 31st March 1905. It is not disputed that, so far as village No. 1 is concerned, the mortgage of 3lst March 1905 is prior to a certain extent to the mortgage of 13th January 1893, inasmuch as the liability under the earliest mortgage of 6th January 1882 was continued by the mortgage of 24th June 1893 and the mortgage of 31st March 1905. This liability having been continued, learned Counsel contended, the integrity of the mortgage, so far as village No. 1 is concerned, has never been broken and therefore the village has remained liable for the total amount due in respect of the original mortgage of 6th January 1882. On 24th June 1893 this amount was Rs. 27,200. On 31st March 1905, according to learned Counsel for the appellant, the amount due was about Rs. 46,000. According to learned Counsel for the defendants, the amount due in respect of this liability was Rs. 55,000. Whether the amount due in respect of the liability on 31st March 1905 be Rs. 45,000 or Rs. 55,000 is a matter of no importance, because the defendants have preferred no cross-objection to the order of the learned Subordinate Judge that village No. 1 may be redeemed upon payment to the defendants of the sum of Rs. 30,000.

6. Under Section 60, T.P. Act, the integrity of a mortgage is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged. Now so long as the integrity of a mortgage remains intact, each item of the property mortgaged, where there are distinct and separate items, is liable for the whole amount due under the mortgage. In the present case no part of the mortgaged property has been acquired by the mortgagees or their successors. We must hold therefore that the integrity of the mortgage has not been broken. It follows that village No. 1 is liable in respect of the total sum which would have been due under the mortgage of 6th January 1882 had that mortgage not been absorbed in the later mortgages. Learned Counsel for the appellant strenuously contended in a very able and ingenious argument that village No. 1 was not liable for the outstanding amount under the mortgage of 31st March 1905. He urged that the sum of Rs. 73,200 having been repaid to the mortgagees a certain proportion of that sum should be appropriated to the reduction of the amount of liability upon village No. 1 which resulted from the charge created by the mortgage of 6th January 1882, which charge was continued in the two later mortgages of 24th June 1893 and 31st March 1905. At first sight this argument seems eminently reasonable. In our opinion however it is completely met by the contention of the learned Counsel for the defendants that village No. 1 was saddled with a certain liability by the mortgage of 6th January 1882 and this liability has been continued by the two later mortgages; and as the integrity of mortgage, so far as village No. 1 is concerned, remained intact, the mortgagees were entitled to place the whole of that liability upon village No. 1.

7. The total amount of that liability is certainly not less than Rs. 46,000 according to learned Counsel for the appellant. There is no evidence to show that the mortgagees apportioned the liability and appropriated, as they might have done, the payments made in redemption to the reduction of the respective liabilities resting upon each of the four villages covered by the mortgage of 31st March 1905 after apportionment. In the year 1905 it is clear the mortgagees were entitled to recover the whole amount due in respect of the mortgage of 6th January 1882 by the sale of village No. 1. The acceptance of certain sums by the mortgagees and the release of villages 4, 5 and 6 cannot in our judgment, effect a reduction of the liability of village No. 1 continued from the mortgage of 6th January 1882. Taking that liability to be Rs. 46,000 in the year 1905, so long as that sum or a lesser sum remains due, under the mortgage of 31st March 1905 the mortgagees are entitled to realise it from village No. 1. Rs. 30,000, the difference between the mortgage consideration and Rs. 73,000 repaid, has been fixed as the redemption amount in the present suit by the learned Subordinate Judge. In our judgment if any sum up to Rs. 46,000 is outstanding under the mortgage of 1905 that amount is payable by the plaintiff on the redemption of village No. 1. In the result we uphold the decision of the learned Subordinate Judge. The appeal is accordingly dismissed with costs. The time for payment of the redemption amount of Rs. 30,000 by the plaintiff is extended by six months from this date.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //