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Jwala Prasad Vs. Mannu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in57Ind.Cas.10
AppellantJwala Prasad
RespondentMannu and ors.
Excerpt:
pre-emption - pre-emptor, whether must sue in respect of the whole of the property alienated. - - this they failed to do, if they sought to take a pre mortgage of only a portion of the property mortgaged. the decree for redemption passed by the courts below was clearly a clerical error for a decree for pre emption. the result is that on the above facts the plaintiffs' suit must fail and it is, therefore, dismissed with costs in all courts......this they failed to do, if they sought to take a pre mortgage of only a portion of the property mortgaged. they were fully aware of all the facts of the case. apparently no separate suit has been brought in respect of the deed of the 17th of april 1917 and it row comes to this, that the plaintiffs have got a decree in respect to a part only of the property, whereas under the law they are not entitled to take a portion of the mortgage but must take the whole of it. this point appears to have escaped the attention of the courts below but it is a point which is fatal to the plaintiffs' case. the decree for redemption passed by the courts below was clearly a clerical error for a decree for pre emption. the result is that on the above facts the plaintiffs' suit must fail and it.....
Judgment:

1. This is a defendant's appeal arising out of a suit for pre-emption or, rather one might say, for pre-mortgage. Curiously enough it has resulted in the Courts below giving a decree for redemption of a mortgage, though we fancy that this was a clerical error. The facts are as follows:-- The mortgagors are the owners of certain property which was mortgaged to the plaintiff's preemptors with possession. The mortgagors brought a suit for redemption of the mortgage and obtained a decree. In order to raise money they went to the defendant-appellant, Jwala Prasad, and to prevent any question of pre-emption being raised, they executed ostensibly a deed of gift in his favour for two Biswas and a decimal share and followed this up with a simple mortgage of another portion of the properly. The Courts below have found, and rightly so, that these two documents really constitute one and the same transaction and that that transaction was a simple mortgage of the property covered by the two deeds. The plaintiffs pre-emptors, however, came into Court suing only in respect to the one document, the ostensible deed of gift. The date of this document is the 12th of January 1917. The date of the subsequent mortgage is the 17th of April 1917. If the facts are as found by the Court below, and we must accept that finding, then the plaintiffs ought to have sued in respect to both transactions and to have claimed the right to take a pre mortgage of the properly in preference to the defendant-appellant. This they failed to do, if they sought to take a pre mortgage of only a portion of the property mortgaged. They were fully aware of all the facts of the case. Apparently no separate suit has been brought in respect of the deed of the 17th of April 1917 and it row comes to this, that the plaintiffs have got a decree in respect to a part only of the property, whereas under the law they are not entitled to take a portion of the mortgage but must take the whole of it. This point appears to have escaped the attention of the Courts below but it is a point which is fatal to the plaintiffs' case. The decree for redemption passed by the Courts below was clearly a clerical error for a decree for pre emption. The result is that on the above facts the plaintiffs' suit must fail and it is, therefore, dismissed with costs in all Courts.


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