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Raghubar Singh and ors. Vs. Panchaiti Akhara Bara UdasIn Nirwan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in167Ind.Cas.783
AppellantRaghubar Singh and ors.
RespondentPanchaiti Akhara Bara UdasIn Nirwan
Excerpt:
transfer of property act (iv of 1882), section 60 - mortgagor selling part of mortgaged property to stranger--subsequent sale of an item to mortgager--integrity of mortgage, if broken--stranger purchaser's eight to redeem--proportionate payment, how to be worked out. - - we consider that the letter course is the best as this will finally determine the eights of the mortgagors and their venders, the appellants......under section 60, transfer of property act; the appellants, who are interested in a part of the mortgaged property, acquired a eight to redeem their own property on payment of a proportionate part of the amount remaining due on the mortgage. the plaint set out that certain payments had been made to the plaintiffs by the appellants amounting in all to rs. 20,378, but these payments had not been made on january 9, 1921, when the appellants took the sale-deed from the mortgagors and undertook to make the payment of rs. 21,800. on the contrary the payments of the appellants were sperad over a number of years up till may 5, 1932. the suit was brought on january 7, 1933. the sole payments made by the mortgagers, defendants nos. 1 to 7, were one small payment in cash, rs. 275 and a remission.....
Judgment:

1. This is a first appeal by Ragbubir Singh and others who were defendants Nos. 8 to 23 in a suit for sale on a simple mortgage. The mortgage was dated October 22, 1907, and was for Rs. 11,000. The mortgagors were defendants Nos. 1 and 2 and the predecessors of defendants Nos. 3 to 7, so that defendants Nos. 1 to 7 now represent, the mortgagors. On January 9, 1921, the mortgagors executed a sale deed of about half their property in favour of the appellants Raghubir Singh and others. This document is printed on page? 31 and 32. The sale consideration was Rs. 24,000. Of this Rs. 21,800 was left with the venders so that they should pay the amount to Babu Dharam Das and get the sold property released from the mortgage. It is to be noticed that this payment was not to discharge the entire mortgage-debt which was by calculation about Rs. 28,000 due at that period. Subsequently) on April 19, 1926, the mortgagors sold to the mortgager one item of property and it is admitted that the result of this sale was to break up the integrity of the mortgage. Consequently under Section 60, Transfer of Property Act; the appellants, who are interested in a part of the mortgaged property, acquired a eight to redeem their own property on payment of a proportionate part of the amount remaining due on the mortgage. The plaint set out that certain payments had been made to the plaintiffs by the appellants amounting in all to Rs. 20,378, but these payments had not been made on January 9, 1921, when the appellants took the sale-deed from the mortgagors and undertook to make the payment of Rs. 21,800. On the contrary the payments of the appellants were sperad over a number of years up till May 5, 1932. The suit was brought on January 7, 1933. The sole payments made by the mortgagers, defendants Nos. 1 to 7, were one small payment in cash, Rs. 275 and a remission of Rs. 194-3-6 and also a payment of Rs. 8,000 by execution of the sale-deed of April 19, 1926, and a further payment of Rs. 1,000 by instalments. The suit, therefore, was brought for the balance of Rs. 17,114-0. The defendants Nos. 24 to 27 are subsequent transferees of a portion of the mortgaged property. The written statement of the original mortgagers, defendants Nos. 1 to 7, contained a plea, para. 17, that their venders, the appellants, were liable for the entire amount because it was alleged that the principal and interest had accumulated on account of their default. This, however, does not appear to be arithmetically accurate. The chief defence of the appellants in para. 16 was that the plaintiff should being a claim for a proportionate amount of the mortgage money in respect of the different items of property. The Court below has repelled is suggestion and has passed a joint decree against all the defendants and against all the mortgaged property for the total sum now due to the mortgagers, that is Rs. 19,111-14-0.

2. The chief point which has been argued before us in appeal is whether this joint decree should stand or whether the amount should be split up. Further whether the amount is to be split up in a manner so as to be proportionately divided. It is clear that under Section 60, Transfer of Property Act, the appellants have the right to redeem their share on payment of a proportionate part of the amount remaining due on the mortgage. The argument has been put forward, therefore, for the appellants that the amount due should be divided proportionately to the value of the different items of the property. On the other hand the original mortgagors have claimed that the division should be made in proportion to their liabilities under their sale deed. We consider that the letter course is the best as this will finally determine the eights of the mortgagors and their venders, the appellants. Accordingly we direct that a calculation shall be made in the following manner: The office will calculate the amount of principal and interest on Rs. 21,800 from January 9, 1921, up to a date six months from this order. Raven annas pee cent, pee mensem is taken, as this is the interest in the original deed of mortgage. The office will then calculate the payments made by the appellants on the different dates and the interest at 11 annas percent, pee mensem on those payments up to the present date. The difference between these two totals will be the sum for which the appellants will be liable. The sum for which the original mortgagors, defendants Nos. 1 to 7, will be liable will be the total amount now due under the decree for the mortgage, principal and interest, less the amount due from the appellants.

3. As regards costs, the plaintiff is entitled to his full costs in the Court below and we consider that as the appellants ask that the plaintiff's suit should be dismissed against the appellants, the plaintiff was a necessary party in this Court on such a pleading and, therefore, the plaintiff will be allowed No costs of appeal against the appellants solely. As regards the costs of the plaintiff in the Court below, we consider that the appellants and the defendants Nos. 1 to 7 should pay the costs of the plaintiff in proportion to the amounts which they are ultimately found due to pay. The question of the reduction of interest under the Agriculturists Relief Act is left for the Execution Department. In the Court below each set of defendants, will pay their own costs and in this Court appellants will receive costs from the mortgagors, defendants Nos. 1 to 7.


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