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Shiam Saran Vs. Banarsi Das and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All192
AppellantShiam Saran
RespondentBanarsi Das and ors.
Excerpt:
mortgage - integrity broken by mortgagee--part redemption--appeal--appellate court--finding s of fact arrived at--court, duty of. - - the learned district judge, having found all the fasts, was perfectly competent to work oat their legal consequences himself and, if he came to the conclusion that the decree of the trial court required amendment, he should hive amended it and brought the litigation to a close so far as his court was concerned......three defendants, impleaded as the heirs of the original mortgagee, have a squired one-half of the equity of redemption. he asserted himself to be the owner of 7/8ths of the remaining half share in the equity of redemption and sued to redeem the mortgage in respect of the said half share, that is to say, so much of the mortgage as affected property of which the mortgagee had net become the owner. he impleaded in the array of defandants all persons who could possibly be regarded as having a claim to any share in the equity of redemption along with himself. the majority of the defendants so impleaded supported the plaintiff's claim and asked that his suit might be decreed as brought.2. one defendant, by name ehean beg, who was admitted by the plaintiff to be the owner of the remaining.....
Judgment:

1. The suit out of which this appeal arises was for the redemption of a mortgage Of the 7th of July 1891, the debt secured by which amounted to Rs. 1,357.4 0. The plaintiff admitted that the integrity of the mortgage had been broken up and that the first three defendants, impleaded as the heirs of the original mortgagee, have a squired one-half of the equity of redemption. He asserted himself to be the owner of 7/8ths of the remaining half share in the equity of redemption and sued to redeem the mortgage in respect of the said half share, that is to say, so much of the mortgage as affected property of which the mortgagee had net become the owner. He impleaded in the array of defandants all persons who could possibly be regarded as having a claim to any share in the equity of redemption along with himself. The majority of the defendants so impleaded supported the plaintiff's claim and asked that his suit might be decreed as brought.

2. One defendant, by name Ehean Beg, who was admitted by the plaintiff to be the owner of the remaining 1/3th of the unre deemed half share in the mortgage, asked the Court to add him to the array of plaintiffs and to enable him to redeem in this very same suit his own 1/8th share. The Trial Court refused to do this and Ehean Beg has acquiesced in the decision against him. The Court of first instance gave the plaintiff a decree for redemption of one-half of the property originally mortgaged on payment of one half of the montgege debt, that is to say, Rs. 678 100.

3. The three defendants who were impleaded as heirs of the original mortgagee appealed to the Court of the District Judge, along with another defendant who claimed to have acquired by purchase from some of the heirs of the original mortgager a portion of the equity of redemption in the share sought to be redeemed.

4. The learned District Judge has set forth at some length the complicated series of transactions antecedent to the present suit. He has, however, arrived at no finding as to the legal effect of the facts found by him on the position of the parties. He has assumed that the legal effect must be something inconsistent with the decree passed by the Trial Court, though he does not bay exactly in what respect that decree will require to be modified. He sets the decree aside and sends the a use bask to the Trial Court for the preparation of a new decree on the basis of the findings of fait which he has himself recorded. This was not a proper order for the lower Appellate Court to have passed. The learned District Judge, having found all the fasts, was perfectly competent to work oat their legal consequences himself and, if he came to the conclusion that the decree of the Trial Court required amendment, he should hive amended it and brought the litigation to a close so far as his Court was concerned. In another respect also the learned District Judge is in error. He seems to assume that the plaintiff could not possibly redeem any portion of the mortgaged property in respect of which ha had not himself personally acquired the equity of redemption, No doubt the integrity of the mortgage has been broken up by reason of the fact that the mortgagee has acquired at least one-half of the equity of redemption. It is equally clear, on the findings of the learned District Judge himself, that the plaintiff has acquired at least soma part of the equity of redemption in the remaining half share. He is entitled on the strength of his position as part owner of the mortgaged property to redeem just as much of it as does not belong to the mortgagees themselves, and he is entitled to do so on payment of a proportionate share of the mortgage-debt. As a matter of fact, his claim to redeem was supported by most of the defendants who might have set up an interest in the mortgaged property, and the defendant Ehsan Bag has acquiessed in the decree of the Trial Court, the effect of which would be to put the plaintiff in possession of the share of which Ehsan Bag is the owner until such time as Ehsan Beg redeems his share by payment to the plaintiff of a proportionate amount of the mortgage-debt. There is no objection whatever to this, and so far as this point goes, the decree of the Trial Court seems to have been correct.

5. The real question upon which the parties are at issue is, whether the mortgagees are the owners of one half only of the property originally mortgaged; or of one-half plus 7/64ths of the other half share, that is to say, of 71/128ths in all. On this point the findings of the lower Appellate Court are clear enough, The mortgagee, Banarsi Das, held simple money-decrees against various descendants of the original mortgagor. In execution of these decrees he attached and brought to sale various fractions of the equity of redemption in the property with which we are now concerned. In the year 1908 he attached, as the property of one Munawar Beg, a share of 7/64ths in the property in question, brought it to sale and purchased it himself. Later, in the same year, he attached and /brought to sale a 2-/64th share, of which 14/64th was specified as the property of Munawar Beg, and, having got it advertised for sale, it was purchased by the defendant, Ghazanfar Ali, who has since transferred his rights to the plaintiffs.

6. The District Judge's argument is that Munawar Bag never owned more than 14/64ths in all in the property in suit; that, inasmuch as 7/6ths belonging to him had been brought to sale and purchased by Banarsi Das, he had only 7/64ths left, and, therefore, Ghazanfar Ali at his auction purchase took 21/64ths and not 28/64ths. If the contention of the mortgagees is correct, the only result would be that we should have to modify the decree of the Trial Court by reducing the share sought to be redeemed by the plaintiff and also the amount of the mortgage-money to be paid by the plaintiff proportionately; that is to say, to the extent of 7/64ths in each case. We think, however, that on this point the Trial Court was substantially right and the learned District Judge wrong, Banarsi Das, having himself attached and brought to sale the entire share of 14/64ths as the property of Munawar Beg and having profited by the price bid at the auction by Ghazanfar Ali, inasmuch as the money realised by the auction sale vas applied in satisfaction of Banarsi Das'a own decree, he is not entitled to plead that not Munawar Beg but he himself was, at the date of Ghazanfar Ali's auction purchase, the owner of 7/64ths out of the aforesaid 14/64ths.

7. In our opinion, therefore, the decree of the Trial Court was correct and did not require any amendment on the part of the lower Appellate Court. We set aside the order under appeal and substitute for it an order dismissing the appeal to the Court below and affirming the decree of the Court of first instance. The plaintiff is entitled to his costs in this and the lower Appellate Court.


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