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Mt. Shamrati Koer and anr. Vs. Kalika Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All578
AppellantMt. Shamrati Koer and anr.
RespondentKalika Singh
Cases ReferredIn Halka v. Nannhon
Excerpt:
- - the defendants contended that they were the owners of the property in suit and that no mortgage had been made and their possession was adverse as well as that of a proprietor......as mortgagee and that the mortgage money was rs. 300. the learned subordinate judge decreed the suit for possession on payment of rs. 300. against this decision the defendants have come up here in appeal. the chief point taken by the appellants is that as, according to the evidence of the plaintiff-respondent, each mortgage was for rs. 100 and as, the mortgage was not effected by a registered document, the secondary evidence of the mortgages was inadmissible. there can be no doubt that the mortgages being unregistered, the deeds even if they were available would not have been admissible in evidence) and no other evidence could have been produced to prove the mortgages. a suit for redemption of a usufructuary mortgage is in substance a suit for' possession of immovable property. though.....
Judgment:

Ganga Nath, J.

1. This is a defendants appeal and arises out of a suit brought against them by the plaintiff-respondent to recover possession over the property described in the plaint by redemption of a mortgage by payment of Rs. 300. The plaintiff's case was that his father mortgaged the property in suit to Sanoo Singh, the predecessor-in-title of the defendants by three mortgage deeds for Rs. 300. The mortgage was usufructuary. On the death of Sannoo Singh his wife, Mt. Bodha sub-mortgaged half of the mortgagee rights to Chhabboo Kandu and subsequently she made a gift of the mortgagee rights to defendant 2. Defendant 2 redeemed the sub-mortgage from the heirs of Chhabboo Kandu and acquired possession over the other half of the mortgaged property also. The defendants contended that they were the owners of the property in suit and that no mortgage had been made and their possession was adverse as well as that of a proprietor. The trial Court found that no mortgage was proved and dismissed the suit. On appeal by the plaintiff the learned Subordinate Judge of Azamgarh found that the defendants' possession over the property in suit was not as owners but was as mortgagee and that the mortgage money was Rs. 300. The learned Subordinate Judge decreed the suit for possession on payment of Rs. 300. Against this decision the defendants have come up here in appeal. The chief point taken by the appellants is that as, according to the evidence of the plaintiff-respondent, each mortgage was for Rs. 100 and as, the mortgage was not effected by a registered document, the secondary evidence of the mortgages was inadmissible. There can be no doubt that the mortgages being unregistered, the deeds even if they were available would not have been admissible in evidence) and no other evidence could have been produced to prove the mortgages. A suit for redemption of a usufructuary mortgage is in substance a suit for' possession of immovable property. Though a suit for redemption could not lie yet there was nothing against the plaintiff's claiming a decree for possession, if the plaintiff could prove his title independently of the mortgage. This view is fully supported by Maha Mangal Rai v. Kishun Kandu 1927 All. 311 and Halka v. Nannhon 1932 All. 259. In Halka v. Nannhon 1932 All. 259 the plaint was framed as if it were one in a suit for redemption and the substantive relief was one for possession as in this suit. The mortgage deed being unregistered was invalid and no suit for redemption could lie. The plaintiff succeeded in proving his title independently of the mortgage. It was held that the defendants must be deemed to have acquired at least the mortgagee's rights, and the plaintiff was entitled to recover possession on payment of the mortgage money admitted by him in the plaint.

2. The chief point for consideration in this case is whether there is any evidence independently of the evidence of the alleged mortgages to prove the plaintiff's title and to entitle him to a decree for possession. There are copies of three khewats. In the copy of the khewats for 1868 tine property is entered in the name of Shoo Pal Singh, the predecessor-in-title of the plaintiff. The property was similarly entered in his name in the khewat of 1304-F. In the settlement khewat of 1309 Sheo Pal Singh was entered against the property in suit as the mortgagor and Mt. Bodha as the mortgagee of half and Arjun and Chhannoo, sons of Chhabboo, as sub-mortgagees of the other half of the property in suit. In 1895 Mt. Bodha Kuar, widow of Sannoo Singh, executed a sub-mortgage of half of the mortgaged property in favour of Chhabboo Kandu in which she admitted that the property in suit had been mortgaged with her husband, Sannoo Singh, by Sheo Pal Singh and that her husband and after him she had been in possession as a mortgagee. At the time of the sub-mortgage, that is on 30th July 1895 Mt. Bodha Kuar admitted that she was in possession as a usufructuary mortgagee over the property in suit 'under the mortgage made by Sheo Pal Singh in favour of her husband Sannoo Singh. The entries in the settlement khewat of 1308F along with, the admissions in the sub-mortgage of 30th July 1895 and the very fact of the sub-mortgage and thereafter the fact of the redemption of this sub-mortgage by defendant 2 leave no room, for doubt that the defendants' possession has been all along as that of a mortgagee. On this documentary evidence, independently of the evidence of the mortgage, the learned. Subordinate Judge has recorded a finding that the defendants were not the owners and their possession was as that of a mortgagee.

3. The mortgages being invalid, the plaintiff is entitled to possession over the property in suit, but as the defendants have been in possession for more than 12 years as a usufructuary mortgagee they must be deemed to have acquired mortgagee's rights and thus there came into existence a legal operative mortgage which the plaintiff must redeem as a condition precedent to a decree for possession. The plaintiff himself admits the amount of the mortgage as Rs. 300, on the condition of the payment of which the lower Court has decreed the plaintiff's suit for possession.

4. The judgment of the Court below is correct. It is therefore ordered that the appeal be dismissed with costs and the decree of the lower Court be confirmed.


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