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Shafaat-ullah Vs. Izzat-ullah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in28Ind.Cas.677
AppellantShafaat-ullah
Respondentizzat-ullah and ors.
Excerpt:
transfer of property act(iv of 1882), section 95 - mortgagor allowed to redeem in part--contract--integrity of mortgage, if broken--co-heirs redeeming a mortgage--charge--dispossession by other co-heirs--suit for possession, maintainability of. - .....after the mortgage, fateh-nn-mssa died leaving four sons. her first son is represented in this suit by defendants nos. 6, 7 and 8. her second son is re-presented by defendants nos. 3, 4 and 13. the third son is represented by defendants nos. 1 and 2 and the fourth son is represented by the plaintiff, shafaat-ullah, and defendants nos. 5, 12, 14 and 15. each branch of the family became entitled to one-fourth of fateh-un-nissa' estate, but under an arbitration award each branch got definite properties not necessarily corresponding exactly to its one-fourth share. it was provided in the mortgage-deed that the mortgagor might redeem any portion of the property upon payment of a proportionate part of the debt, and it is said that in the award it was provided that each branch might settle.....
Judgment:

Chamier, J.

1. The facts of this case are as follows, so far as they have been determined. Many years ago certain property was mortgaged by Mummmat Fateh-un-nissa to the predecessor of defendants Nos. 9 to 11. The mortgage was of a usufructuary character and the mortgagee was placed in possession. Some years after the mortgage, Fateh-nn-mssa died leaving four sons. Her first son is represented in this suit by defendants Nos. 6, 7 and 8. Her second son is re-presented by defendants Nos. 3, 4 and 13. The third son is represented by defendants Nos. 1 and 2 and the fourth son is represented by the plaintiff, Shafaat-ullah, and defendants Nos. 5, 12, 14 and 15. Each branch of the family became entitled to one-fourth of Fateh-un-nissa' estate, but under an arbitration award each branch got definite properties not necessarily corresponding exactly to its one-fourth share. It was provided in the mortgage-deed that the mortgagor might redeem any portion of the property upon payment of a proportionate part of the debt, and it is said that in the award it was provided that each branch might settle with the mortgagee in respect of its own portion of the property. Defendants Nos. 6 to 8 brought a suit for redemption of that portion of the property which had been allotted to them by the award, but as might be expected, they got a decree for redemption not of the property allotted to them by the award, but of a one-fourth share of the whole. The case of the plaintiff is that, being one of the persons entitled to redeem the mortgage, he has paid to the mortgagee or rather to the mortgagee's representatives the amount remaining due on the mortgage, and in this suit he claims possession of the remainder of the property, that is, of the mortgaged property excluding what was decreed to defendants Nos. 6 to 8 in their suit. The representatives, of the mortgagee put in no defence, but the suit was resisted by most of the other members of the mortgagor's family. It appears that when the money was paid by the plaintiff to the mortgagee's representatives the latter surrendered possession and the plaintiff, applied for mutation of names. Thereupon many of the other members of the family, including those who have resisted this suit, put in objections, and the result appears to have been that mutation of names was made in favour of all the persons entitled to the property, as if the mortgage had been paid off by all of them. It is, in fact, the case of several of the defendants that each of the different persons entitled to the property contributed his quota of the money paid to the mortgagees, and, there fore, they say that they are entitled to retain possession. The plaintiff's case is that he found the whole of the money that was paid to the mortgagees, and, therefore, he alone is entitled to possession and is entitled to retain possession until the other members of the family pay him what is due on account of their shares. There is also a subsidiary question between the plaintiff on the one side and the defendants Nos. 6 to 8 on the other. The plaintiff complains that defendants Nos. 6 to 8 have taken possession of one-fourth of a grove to which they are not entitled under the award. This question may be dismissed from further consideration, with the remark that defendants Nos. 6 to 8 have taken possession only of what was decreed to them, and unless and until the plaintiff, gets possession of: the rest of the property, so that the award may be given effect to, defendants Nos. 6 to 8 are entitled to retain possession of what they have got. Both the Courts below have dismissed the suit, on the ground that the plaintiff was not entitled to redeem more than his share or more than the share of his branch of the family. In my opinion it in quite clear that the plaintiff as one of the persons entitled to the property is competent to redeem the whole mortgage. This is not a case of the integrity of the mortgage having been split up by partial redemption effected by defendants Nos. 6 to 8; for what they did was strictly in accordance with the mortgage. They, being some of the persons entitled to the property, might have, if they had chosen, redeemed the whole mortgage, but they took advantage of the clause of the deed referred to above to redeem a portion only, and they were entitled to redeem that portion not because they had inherited any particular share in the property from Fateh-un-nissa, but because the mortgage-deed empowered the mortgagor, and, therefore, also the mortgagor's representatives or any one of them, to redeem a portion of the property on payment of a proportionate part of the debt. For the same reason it appears to me quite clear that the plaintiff is entitled to redeem the remainder of the mortgaged property, and the reasons given by the Courts below for dismissing the suit appear to me to be unsound. In this Court the same reasons were put forward; but an additional and more serious argument was advanced, namely, that a suit of this character is not maintainable at all. Section 95 of the Transfer of Property Act has been discussed in several cases in this Court and it has been held that in the case of a mortgage made without delivery of possession, one of several mortgagors redeeming the property is entitled to a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming, and that the words 'obtains possession' and 'obtaining possession' apply not only to a case of mortgage under which possession has been delivered to the mortgagee. It is admitted that if the plaintiff was entitled to redeem the remainder of the mortgage, and if, having done so, he had succeeded in obtaining possession, he would have been entitled to a charge on the shares of the other members of the family. But it is contended that as the other members of the family or some of them have succeeded in preventing the plaintiff from obtaining possession, the plaintiff cannot sue for possession. It seems to mo that if this contention is sound, it follows, according to the decisions of this Court, that the plaintiff lists not even a charge on the shares of the other members for his proportion of the expenses incurred by him in redeeming the mortgage. (I am assuming, of course, for the present that the whole of the money paid to the mortgagee was found by the plaintiff). The construction of Section 95 advocated by the defendants in his case appears to me to put a high premium on violence. Their argument comes to this, if one of several mortgagors redeems a mortgage, and the mortgagee is ready and willing to hand over possession to the person who pays him the mortgage-money, yet if the co-mortgagors can succeed by force or otherwise in preventing the person who paid the money from taking possession of the property, their shares in the property fire, freed from all liability for their proportion of the mortgage-money. Neither side has been able to cite any authority on the subject; but it seems to me that the plaintiff, being a person interested in the property and having paid to the mortgagees what remained duo to them, was entitled to possession of the property, and that the defendants cannot be allowed to defeat the plaintiff's charge on the property by keeping, him out of possession.

2. But before I can dispose of this appeal, I must have findings on the issues which have not been taken up by the Courts below. I direct that the record be returned to the lower Appellate Court in order that findings may be recorded on the issues other than Nos. 3 and 5. Fresh evidence may be admitted. I invite attention to the fifth ground taken in the memorandum of appeal to the lower Appellate Court in order that the question raised in that ground of appeal may be considered by the Judge. On return of the findings ten days will be allowed for objections.


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