Skip to content


Sardanand Rai and ors. Vs. Sohawan Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1919All246; 51Ind.Cas.815
AppellantSardanand Rai and ors.
RespondentSohawan Khan and ors.
Excerpt:
mortgage - redemption,--integrity of mortgage broken with consent of mortgagee--redemption of remainder. - - 1. this is a perfectly plain case. shortly afterwards, the mortgagee died and his heirs, who, i am satisfied and, if necessary, should be prepared to find, were members of a joint hindu family, took in what has been called by the lower appellate court a partner oc-sharer and somehow or another, which does not appear and the best persons to inform the court about it were the present appellants, that partner became possessed of a moiety of the total mortgaged property by buying sheoshankar khan's share......them entitled to do so. the appellants, being some at any rate of the descendants or heirs of the original mortgagee, appeal against that decision, and invoke in their aid the rule which prohibits the breaking up of a mortgage so as to entitle a mortgagor at his own sweet will and pleasure to redeem any portion thereof which he feels disposed to do. in my view the integrity of this mortgage has been completely broken up by the consent of the appellants or the persons through whom they claim, and that being so, it is hardly possible to conceive of a more hopeless appeal. apart from that i should have been prepared to follow the principle laid down in narayan v. ganpat 21 b. 619 ; 11 ind. dec. (n.s.) 415 where the exceptions to the general rule that a mortgagee has a right to insist that.....
Judgment:

Walsh, J.

1. This is a perfectly plain case. Two persons, many years ago, mortgaged two distinct and separate properties in which they were separately interested for one joint sum; in other words, they joined in mortgaging their separate estates. Shortly afterwards, the mortgagee died and his heirs, who, I am satisfied and, if necessary, should be prepared to find, were members of a joint Hindu family, took in what has been called by the lower Appellate Court a partner oc-sharer and somehow or another, which does not appear and the best persons to inform the Court about it were the present appellants, that partner became possessed of a moiety of the total mortgaged property by buying Sheoshankar Khan's share. With regard to the other moiety there would appear from the finding of the lower Appellate Court to have been a sort of partition, because one Sankata Prasad Rai is said to be in possession of one-anna two-ganda share, and one Mahesh Rai and the present appellants between them to be in possession of another one-anna two-ganda share, those two shares together making up the total of the second moiety which the other mortgagor mortgaged with Sheoshanker's two annas four gandas. It is significant, to say the least of it, that neither Sankata Prasad nor Mahesh Rai appealed even to the lower Appellate Court from the original decision in this case. The plaintiffs seek to redeem the other half which was not purchased by the partner on payment of half the mortgage money and both Courts have held them entitled to do so. The appellants, being some at any rate of the descendants or heirs of the original mortgagee, appeal against that decision, and invoke in their aid the rule which prohibits the breaking up of a mortgage so as to entitle a mortgagor at his own sweet will and pleasure to redeem any portion thereof which he feels disposed to do. In my view the integrity of this mortgage has been completely broken up by the consent of the appellants or the persons through whom they claim, and that being so, it is hardly possible to conceive of a more hopeless appeal. Apart from that I should have been prepared to follow the principle laid down in Narayan v. Ganpat 21 B. 619 ; 11 Ind. Dec. (N.S.) 415 where the exceptions to the general rule that a mortgagee has a right to insist that his security shall not be broken up are set out. One of them includes a case in which the original contract shows that the mortgagors joined together in mortgaging each his separate share. I think that applies to this particular mortgage and, if necessary, I should have been prepared so to decide. Bat the ground on which I think this appeal ought to be dismissed is that the present appellants have been party either themselves or through their predecessors to the breaking up of the integrity of this mortgage.

Ryves, J.

2. I agree.

3. By the Court.--The appeal must be dismissed with costs, including in this Court fees on the higher scale.


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