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Shiam Lal and anr. Vs. Mt. Hukum Kuar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All100; 113Ind.Cas.832
AppellantShiam Lal and anr.
RespondentMt. Hukum Kuar and ors.
Excerpt:
- - certain persons, who occupied the position of co-mortgagors, and who were seven in number, sought the redemption of an ancient mortgage, made sometime in 1868. the suit succeeded and it was ordered that on payment of the mortgage money, the then plaintiffs would be put in possession of the property and in case of their failure to pay, the suit would stand dismissed. 1. 4. as to the second point, on the statement of facts made above, the position of the plaintiffs in the former litigation, who were unable to pay the mortgage-money, remained that of mortgagors, while the position of those plaintiffs who had paid up, became that of mortgagees, so far as the shares of those plaintiffs' who had failed to pay, were concerned......mortgage, made sometime in 1868. the suit succeeded and it was ordered that on payment of the mortgage money, the then plaintiffs would be put in possession of the property and in case of their failure to pay, the suit would stand dismissed. it so happened that only four out of the seven plaintiffs deposited the entire mortgage-money. the result was that those four plaintiffs, who deposited the mortgage-money, came into possession of the entire property mortgaged in 1868. it is admitted before me, with respect to a portion of the property redeemed, the persons who had deposited the mortgage-money, were recorded as proprietors and in respect of the remaining portions they were recorded, in the revenue papers, as mortgagees.2. the representatives of some of the original plaintiffs who.....
Judgment:

Mukerji, J.

1. Two points have been argued in this appeal. One is one of limitation and the other as to the nature of possession held by the defendant-appellants. The fourth ground of appeal could not be explained to me and it must therefore be taken that it was abandoned. The admitted facts are very briefly these: Certain persons, who occupied the position of co-mortgagors, and who were seven in number, sought the redemption of an ancient mortgage, made sometime in 1868. The suit succeeded and it was ordered that on payment of the mortgage money, the then plaintiffs would be put in possession of the property and in case of their failure to pay, the suit would stand dismissed. It so happened that only four out of the seven plaintiffs deposited the entire mortgage-money. The result was that those four plaintiffs, who deposited the mortgage-money, came into possession of the entire property mortgaged in 1868. It is admitted before me, with respect to a portion of the property redeemed, the persons who had deposited the mortgage-money, were recorded as proprietors and in respect of the remaining portions they were recorded, in the revenue papers, as mortgagees.

2. The representatives of some of the original plaintiffs who did not pay in the mortgage-money under the terms of the decree, raised the present suit, for recovery of their share on proportionate payment, from persons who now hold under those plaintiffs of the earlier litigation who had paid up the mortgage-money.

3. The suit has succeeded in both the Courts and now in second appeal the two points already mentioned have been raised. On the point of limitation, it is clear that on the authority of this Court, the limitation starts from the date of the mortgage and 60 years' rule supplies. The mortgage is usufructuary and the fact that some co-mortgagors have redeemed does not make any difference to the original mortgage. The 60 years' rule is not cut down by the mere fact that some of the mortgagors have effected a redemption: vide Ashfaq Ahmad v. Wazir Ali [1891] 14 All. 1.

4. As to the second point, on the statement of facts made above, the position of the plaintiffs in the former litigation, who were unable to pay the mortgage-money, remained that of mortgagors, while the position of those plaintiffs who had paid up, became that of mortgagees, so far as the shares of those plaintiffs' who had failed to pay, were concerned. There is no question of adverse possession in the circumstances. Further, the rule of limitation being 60 years and the present suit being within 60 years from the date of the mortgage, there is no question of limitation. The appeal fails and is hereby dismissed with costs.


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