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Pohkar Singh and anr. Vs. Ram DIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.849
AppellantPohkar Singh and anr.
RespondentRam DIn and ors.
Cases ReferredMakund Row v. Janki Bai
Excerpt:
.....plaintiffs in this case to make any claim as against mahadeo and bhairon, has the same effect in law as if the plaintiffs had accepted from these two defendants their proportionate share of the mortgage-debt and had handed over their share of the property freed from the encurnberance......transferees. for the purpose of the appeal now before m9, it is sufficient to say that mahadeo and bhairon, defendants nos. 13 and 14, have acquired the equity of redemption in one half of the property originally mortgaged while the remaining defendants are interested in the other half. the property in question is situated in the district of jalaun and it has been found that mahadeo and bhairon took advantage of the provisions of bundelkhand encumbered estates act (i of 1903). no claim was preferred against them in respect of the mortgage now in suit and there is no doubt that they are entitled to the benefit of the provisions of section 12 of the said act; that is to say, every claim against them in respect of this deed must he deemed for all purposes and at all times to have been duly.....
Judgment:

Piggott, J.

1. This was a suit for foreclosure on a mortgage, dated the 21st of May 1877. The first defendant, Ram Din, was implicated as heir of the mortgagor, and there were some 19 other defendants implead-ed as subsequent transferees. For the purpose of the appeal now before m9, it is sufficient to say that Mahadeo and Bhairon, defendants Nos. 13 and 14, have acquired the equity of redemption in one half of the property originally mortgaged while the remaining defendants are interested in the other half. The property in question is situated in the district of Jalaun and it has been found that Mahadeo and Bhairon took advantage of the provisions of Bundelkhand Encumbered Estates Act (I of 1903). No claim was preferred against them in respect of the mortgage now in suit and there is no doubt that they are entitled to the benefit of the provisions of Section 12 of the said Act; that is to say, every claim against them in respect of this deed must he deemed for all purposes and at all times to have been duly discharged.

2. The Court of first instance, having found against the defendants on a number of other points raised, dismissed the suit as against the defendants Mahadeo and Bhairon, but held the remaining one half of the property to ba liable for one half of the mortgage-debt and framed a decree accordingly. The remaining defendants, when appealing to the Distrust Judge on other points, did not raise any plea to the effect that the failure of the plaintiffs to bring any claim under the Bundelkhand Encumbered Estates Act against Mahadej and Bhairon had the effect of extinguishing the entire mortgage, and so making it impossible for the plaintiff to recover anything under its terms, even from those defendants who had never applied for, or obtained, the benefit of the Encumbered Estates Act. The learned District Judge, however, allowed this plea to be taken before him. in argument, and I do not think that in so doing, he acted outside the discretion vested in him by law. He found against the plaintiffs on the point and, on this ground alone and without determining any of the other questions raised before him in appeal, he has dismissed the plaintiff's suit altogether. The same question was before me in the case of Arnar Ohanl v. Tulshi Ram, S.A. No. 858 of 1911, decided by me on the 17th May 1912. I there expressed the opinion that the failure of the mortgagee to make any claim against those of his mortgagors, who obtained the benefit of the Bundelkhand Encumbered Estates Act, in a case in which some of the mortgagors had while others had not, obtained this benefit, could not put the mortgagee in a worse position than he would have occupied if he had, allowed the integrity of the mortgage to be broken up by permitting the holders of a share in the equity of redemption to redeem that share on payment of a proportionate amount of the debt. I am still of the same opinion. The failure of the plaintiffs in this case to make any claim as against Mahadeo and Bhairon, has the same effect in law as if the plaintiffs had accepted from these two defendants their proportionate share of the mortgage-debt and had handed over their share of the property freed from the encurnberance. The mere fact that the plaintiffs as mortgagees might have held the share in the possession of Mahadeo and Bhairon liable for the entire mortgage-debt and left it to these defendants to proceed against the remaining persons interested in the mortgage property for contribution, does not, T think, affect the question now before me. The Special Judges under the Bundelkhand Encumbered Estates Act had very wide equitable jurisdiction; and, as a matter of fact, a special return was furnished by them showing the difference between the sums awarded by them and the sums which would have been decreed by a Civil Court in respect of the same claims. In the present case, if the plaintiffs had taken notice of the proclamation of Mahadeo and Bhairon under the Bundelkhand Encumbersd Estates Act, and had brought forward the claim, it would have mattered very little whether they formally claimed the entire debt voluntarily split' lip the mortgage. The award of the Special Judge would have been based upon their equitable claim to one-half of the mortgage-debt against one-half of the serum. For these reasons, I hold the conduct of the mortgagees, in failing to bring any claim under the Bundelkhand Encumbered Estates Act, has had the effect of breaking of the integrity of the mortgage and that they are now entitled to proceed against one-half of the mortgaged property for recovery of one-half of the debt. I am confirmed in my opinion by the decision of this Court in the case of Makund Row v. Janki Bai 30 A. 141 : A.W.N. (1908) 43 : 5 A.L.J. 132. The learned District Judge endeavors to distinguish this case, and points out that the particular question now in issue was rather taken for granted than formally decided in that case. It is abundantly clear, however, that if the learned District Judge is right in his decision in the present case, theri the reported case above referred to was wrongly decided I accept this appeal and, setting aside the decree of the lower Appellate Court, remand this case under Order XLI, Rule 23 of the Code of Civil Procedure, for a decision on the merits on the pleas actually taken up by the contesting defendants in their memorandum of appeal to that Court. Costs will abide the event.


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