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Mohan Lal and anr. Vs. Ram Charan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All223
AppellantMohan Lal and anr.
RespondentRam Charan and anr.
Cases ReferredPardao Singh v. Dwarka Singh
Excerpt:
- - 180, in which it was held that no extension of the time limited by the decree for the payment of the decretal amount can be made except for good cause shown, whether the order under section 87, in a suit for foreclosure, has been applied for or not. accordingly we hold that they have failed to show that abdul karim was a purchaser of this property at an auction sale. 3. the next ground on which argument was made was that the plaintiffs had failed to prove that they were the heirs of khubchand, the original mortgagor......of 25th february 1875 for rs. 215 of the property in suit to the defendants, and that there was a suit for foreclosure on the basis of this mortgage deed of 25th february 1875 which was decreed on 1.1th april 1888, and therefore defendants pleaded that no further suit could be brought for redemption by persons claiming as heirs of khubchand. now it is clear from what evidence has been produced by the defendants that there was only a preliminary decree for foreclosure passed under section 86, t. p. act, and that there was not a final decree for foreclosure passed under section 87, t. p. act. it was argued by the learned counsel for the appellants that the preliminary decree under section 76 operated to extinguish the right to redeem possessed by the mortgagor and his heirs. for that.....
Judgment:

Bennet, J.

1. This is an appeal by defendants Mohan Lal and Mt. Parbati against a decree for redemption passed by the learned Subordinate Judge of Banda in a suit brought by Ram Charan major and Ram Dhani minor, plaintiffs-respondents. Various grounds of appeal have been taken both of law and fact. The mortgage in question was dated 7th September 1876 and was executed by one Khubehand in favour of Madho Prasad for Rs. 2,200. The first point which has been argued is that there was also a mortgage by conditional sale of 25th February 1875 for Rs. 215 of the property in suit to the defendants, and that there was a suit for foreclosure on the basis of this mortgage deed of 25th February 1875 which was decreed on 1.1th April 1888, and therefore defendants pleaded that no further suit could be brought for redemption by persons claiming as heirs of Khubchand. Now it is clear from what evidence has been produced by the defendants that there was only a preliminary decree for foreclosure passed under Section 86, T. P. Act, and that there was not a final decree for foreclosure passed under Section 87, T. P. Act. It was argued by the learned Counsel for the appellants that the preliminary decree under Section 76 operated to extinguish the right to redeem possessed by the mortgagor and his heirs. For that proposition reference was made to Ram Lal v. Tulsa Kuar [1897] 19 All. 180, in which it was held that no extension of the time limited by the decree for the payment of the decretal amount can be made except for good cause shown, whether the order under Section 87, in a suit for foreclosure, has been applied for or not. That ruling of the year 1896 was referred to in a subsequent ruling of this Court reported in Pardao Singh v. Dwarka Singh [1910] 7 I.C. 50 in the year 1910 and the earlier ruling was not followed. In the ruling of Pardao Singh v. Dwarka Singh [1910] 7 I.C. 50 it is laid down that a mortgagor can redeem the mortgaged property before a decree for foreclosure passed against him is made absolute, the right of redemption not being lost till then. We consider that we should follow this later ruling, and accordingly we hold that the right to redeem was not lost to the heirs of Khubchand, the mortgagor, on account of the preliminary decree which was passed for foreclosure in the year 1888.

2. The next point which was' urged before us was that one Abdul Karim was an auction-purchaser of the property in the year 1879 in execution of a decree at an auction sale. The only basis for this assertion is the entry of the name of* Abdul Karim as one of the defendants in the suit of 1888. No other evidence has been produced by the appellants to establish their contention on this point. Accordingly we hold that they have failed to show that Abdul Karim was a purchaser of this property at an auction sale. The next point on which argument was made was an ejectment suit brought by the widow of Khubchand to eject the appellants in the year 1906. In this suit it is proved that the appellants did claim to be in possession as owners and not as mortgagees. But the revenue Court held that the appellants were mortgagees and could only be ejected on payment. This judgment is not in favour of the contention of the appellants that they had obtained adverse possession as proprietors.

3. The next ground on which argument was made was that the plaintiffs had failed to prove that they were the heirs of Khubchand, the original mortgagor. The pedigree given by the plaintiffs is get forth in the plaint and is as follows:

Ali Mahton |--------------------------------| |Thakurdin Bhagwan| |Katare Hardas| |--------------------- Khuba| | | =Mt. Sahodra Ajodhia Ram Lal Bharosa | |Ram Dhani Ram CharanPlff. Plff.

To prove this pedigree the plaintiffs have produced four witnesses: Sheo Balak, Mt. Pearia, Ram Dayal and Sheo Dayal Singh. These persons recite the pedigree and claim that they learnt it from their relatives in the case of Sheo Balak and Mt. Pearia, who are members of this family, and in the case of Ram Dayal the claim is that he learnt it as a priest of the family, and in the case of Sheo Dayal he is a resident of the village. It is a fact that Ram Dayal and Sheo Dayal have been persons against whom law proceedings were taken at the instance of the father-in-law of the defendants. . On the other side the defendants produced a witness, Sunnar Lal, who claimed to be a member of the family and who gave evidence against the plaintiffs. But this witness made an admission in 1917, which has ,been proved, and the admission is to the effect that Ajudhia, the father of the plaintiff Ram Dhan, performed the funeral ceremony of Mt. Sahodra, widow of Khubchand. This therefore is an admission that the plaintiffs are members of the family of the late Khubchand. We consider that the finding of the learned Subordinate Judge is correct and that it is proved that the plaintiffs are heirs of Khubchand.

4. We consider that the decree was correct and we dismiss this appeal with costs.


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