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Mangru Rai Vs. Shivanand Lal and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All575; 77Ind.Cas.875
AppellantMangru Rai
RespondentShivanand Lal and anr.
Excerpt:
admission, erroneous, whether binding. - - this admission was clearly erroneous inasmuch as admittedly ghurhu was not the heir to musammat anarkali, not being a son of her daughter. the plaintiff who accepts the mortgage made by musammat anarkali is in no better position. the result is that both the appeals and the cross-objections must fail.1. this appeal arises out of a suit for redemption of a mortgage made by one musammat anarkali in 1898; musammat anarkali and jupal kishore, t he father of raj lachhan, the original plaintiff in, this case jointly held six occupancy holdings. musammat anarkali purported to mortgage a half share in three of these holdings and the whole of three more holdings which were mentioned in tie mortgage-deed, that is to say, she mortgaged a half share in three holdings and the whole of three other holdings, altogether six holdings. musammat anarkali died in 1907 end the plaint ff brought this suit for redemption of the mortgage made by her. the defendant who is the mortgagee disputed the plaintiffs right to maintain the suit. he also contended that there was further burden on the property under two.....
Judgment:

1. This appeal arises out of a suit for redemption of a mortgage made by one Musammat Anarkali in 1898; Musammat Anarkali and Jupal Kishore, t he father of Raj Lachhan, the original plaintiff in, this case jointly held six occupancy holdings. Musammat Anarkali purported to mortgage a half share in three of these holdings and the whole of three more holdings which were mentioned in tie mortgage-deed, that is to say, she mortgaged a half share in three holdings and the whole of three other holdings, altogether six holdings. Musammat Anarkali died in 1907 end the plaint ff brought this suit for redemption of the mortgage made by her. The defendant who is the mortgagee disputed the plaintiffs right to maintain the suit. He also contended that there was further burden on the property under two other mortgages, one of which was made in 1903 by Musammat Anarkali and the other in 1907 by Musammat Rekha the daughter of Anarkali. One Ghurhu Lal was a party to the third mortgage mentioned above but it is admitted that Ghurhu was neither the son of Musammat Anarkali's daughter nor her heir in any other way. The learned Judge of the lower Appellate Court held that inasmuch as Musammat Anarkali purported to mortgage not only her own share in three of the holdings (khatas) but also Jugal Kishore's share in those holdings and the plaintiff, the son of Jugal Kishore acquiesced in that mortgage, the plaintiff must be deemed to be the mortgagor of a portion of the mortgaged property and as such he was entitled to maintain the suit. In our judgment this view of the learned Judge is right. Musammat Anarkali as stated above purported to mortgage the whole of three of the holdings and this mortgage was accepted by the plaintiff as a valid mortgage not only of Musammat Anarkali's own share in the holdings but also of his share. Therefore, the plaintiff as the owner of a part of the mortgaged property was entitled to redeem the whole mortgage; such mortgage could not be redeemed piecemeal.

2. The next contention put forward on behalf of the appellant-mortgagee is that Raj Lachhan, the plaintiff had relinquished us rights to the holdings in question inasmuch as in certain proceedings relating to the entry of the name of Ghurhu who was the step-son of Musammat Anarkali's daughter, an application was filed on behalf of Raj Lachhan in which he accepted Ghurhu to be the successor to Musammat Anarkali and did not assert any right in himself. The learned Judge says in his judgment that this application was neither admitted nor proved. It cannot de denied that no proof was given in the case to show that Raj Lachhan had filed the application. His Pleader made certain statements in the Court of first instance. From those statements it seems that he was not certain in his own mind. What he finally said was that the application bore the signature of Raj Lachhan but it had no effect inasmuch as Raj Lachhan was at the date of the application a minor. The learned Judge has held that Raj Lachhan was not a minor. The document which was before the Court was not the original application but a copy and, therefore, what the Pleader must be deemed to have admitted was that the copy purported to bear the name of Raj Lachhan as the applicant who had signed it. But even if we assume shat Raj Lachhan did present the application it contains nothing more than an admission to the effect that Ghurhu was the heir to. Musammat Anarkali. This admission was clearly erroneous inasmuch as admittedly Ghurhu was not the heir to Musammat Anarkali, not being a son of her daughter. The admission, therefore, if any, could not bind Raj Lachhan and preclude him from maintaining the present suit.

3. The third contention before us is that the Court below in not allowing to the appellant the amount of the third mortgage made by Musammat' Rekha and Ghurhu had committed an error. We do not think that this is so. Musammat Rekha made the mortgage in 1907' when the present Tenancy Act was in force. Under that Act she could not make a mortgage of an occupancy holding. Therefore the mortgage is not one which can bind Raj Lachhan and which Raj Lachhan was bound to redeem. The Court below was therefore, right in refusing' to allow the amount of that mortgage to be added to the amount of the original mortgage of 1898. The appeal, therefore, fails and must be dismissed.

4. There are cross-objections on behalf of the plaintiff upon the question of the amount of the second mortgage made by Musammat Anarkali in 1903 which the Court below has declared to be an amount which the plaintiff must pay for the purpose of redeeming the mortgage. Upon the terms of the mortgage of 1903 the burden created on the property was in creased by the amount of the latter mortgage which provided that the earlier mortgage would not be capable of redemption unless the amount of the second mortgage was also paid. It cannot be disputed that if Musammat Anarkali had sought to repudiate the second mortgage and to take back the property from tie mortgagee she would not have been allowed to do so unless she paid the amount of the second mortgage made by her. The plaintiff who accepts the mortgage made by Musammat Anarkali is in no better position. The plaintiff has conceded that Musammat Anarkali had made the mortgage of his share and that he is liable under that mortgage. The effect of the second mortgage was to add a further burden on the property mortgaged under the mortgage of 1898 by an addition to it of the amount of the second mortgage. This burden exists on the properly of the plaintiff. He is, therefore, liable to pay the amount of the second mortgage for the purpose of redeeming the property. The learn d Judge was, in our opinion, right in ordering the plaintiff to pay the amount due upon this second mortgage. The result is that both the appeals and the cross-objections must fail. We dismiss both of them with costs including in this Court fees on the higher scale.


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