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Sheo Kumar Upadhya and ors. Vs. Jittu Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.52
AppellantSheo Kumar Upadhya and ors.
RespondentJittu Singh
Excerpt:
mortgage - redemption--clog--covenant to redeem earlier and subsequent mortgages together--mortgages executed by different persons--hindu law--joint family--right of after--born son to contest alienation. - .....appellate court has dissented from this decision of the court of first instance on the ground that parag singh, one of the uncles of the plaintiff, was not a party to the mortgage of 1877. the learned judge in his judgment says that jokhan singh and chandarbhan singh are not proved to have been the managing members, nor, is the consent of parag singh proved.' we take this last remark to mean that there is no direct evidence of parag singh having assented to the mortgage. the learned judge is of opinion that as parag singh did not assent to the mortgage, it was not binding upon the members of the family and that, therefore, the plaintiff is not bound by it. the mere fact that there is no direct evidence of the assent of parag singh to the mortgage of 1877 is, in our opinion, not.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff-respondent for the redemption of a mortgage, dated the 20th of May 1871, executed by Jokhan Singh, father of the plaintiff, and Prag Singh, one of his uncles. The defendants are the representatives-in-interest of the original mortgagee. Another mortgage was executed on the 3rd of October 1877, which created a further charge on the property comprised in the first mortgage and provided that the first mortgage would not be redeemed without payment of the amount of the second mortgage. The second mortgage was executed by the plaintiff's father, Jokhan Singh, and by another uncle of his, named Chandarbhan. The plaintiff makes no mention of this mortgage in his plaint. In fact he denied that any such mortgage existed. It has, however, been found by both the Courts below that the mortgage of 3rd October 1877 was made by Jokhan Singh and Chandarbhan Singh. It is an admitted fact that the plaintiff's father and the plaintiff's uncles formed a joint family, and that the plaintiff was not born when the mortgage of 1877 was executed. It has been found by the Court below, and this finding is not challenged in second appeal, that under the terms of the subsequent mortgage the earlier mortgage cannot be redeemed unless the amount of the subsequent mortgage is also paid. We have, therefore, to consider whether the plaintiff can redeem the mortgage of 1871 without paying the amount of the subsequent mortgage. The Court of first instance held that he is bound to discharge the amount of the mortgage of 1877. The lower appellate Court has dissented from this decision of the Court of first instance on the ground that Parag Singh, one of the uncles of the plaintiff, was not a party to the mortgage of 1877. The learned Judge in his judgment says that Jokhan Singh and Chandarbhan Singh are not proved to have been the managing members, nor, is the consent of Parag Singh proved.' We take this last remark to mean that there is no direct evidence of Parag Singh having assented to the mortgage. The learned Judge is of opinion that as Parag Singh did not assent to the mortgage, it was not binding upon the members of the family and that, therefore, the plaintiff is not bound by It. The mere fact that there is no direct evidence of the assent of Parag Singh to the mortgage of 1877 is, in our opinion, not sufficient to justify us in holding that that mortgage was not made with his consent. The earlier mortgage of 1871 was executed by Jokhan Singh and Parag Singh. Chandarbhan, who was not a party to that mortgage, accepted it when he executed the second mortgage. The three brothers were members of a joint family, and the same property which was the property of the joint family was comprised in both the mortgages. For more than 18 years after the date of the mortgage of 1877, Parag Singh was alive and he never contested its validity or repudiated it. The reasonable inference from his conduct is that both the mortgages were made with the consent of all the three brothers. That being so, the plaintiff, who was not in existence at the date of the mortgage of 1877 and had no interest in the property to which it relates, cannot now contest the validity of the said mortgage. In this view the Court of first instance was' right. We, accordingly, allow the appeal, set aside the decree of the lower appellate Court with costs in this Court and in the Court below, and restore the decree of the Court of first instance. We extend the time for payment of the mortgage-money for a period of four months from this date.


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