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Hari Kishan and ors. Vs. Shamlal - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 290 of 1967
Judge
Reported in1968WLN120
AppellantHari Kishan and ors.
RespondentShamlal
DispositionApplication allowed
Cases ReferredKajorilal v. Bhanwer Lal
Excerpt:
.....1957 - section 4(h)--application of--recitals in deed show present mortgage executed to pay off earlier mortgage--held t mortgage within meaning of section 4(h)--mortgage cannot be split into two mortgages. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is..........of his house on 1-1-45. on 23-4-49 he executed the present possessory mortgage in favour of the decree-holders partly to pay off the earlier mortgage and partly to defeay the expenses of the marriages of his daughters. the mortgage amount was rs. 6,000/- out of which rs. 4,000/- were paid to the earlier mortgagee and rs, 2000/- were borrowed for celebrating the marriages of the daughter. the contention on behalf of the decree-holders is that the case falls under section 4(h) of the rajasthan relief of agricultural indebtedness act, 1957 and the provisions of the act are therefore not applicable. the sub-section runs as follows:4. the provisions on this act shall not affect claims due in respect of-(h) a mortgage-claim against property in the hands of a subsequent transferee who has.....
Judgment:

Jagat Narain, J.

1. This is a revision application by the decree-holders against an order of the executing court abating execution proceedings.

2. The judgment-debtor executed a possessory mortgage in favour of one Motimal Bhandari in respect of his house on 1-1-45. On 23-4-49 he executed the present possessory mortgage in favour of the decree-holders partly to pay off the earlier mortgage and partly to defeay the expenses of the marriages of his daughters. The mortgage amount was Rs. 6,000/- out of which Rs. 4,000/- were paid to the earlier mortgagee and Rs, 2000/- were borrowed for celebrating the marriages of the daughter. The contention on behalf of the decree-holders is that the case falls under Section 4(h) of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 and the provisions of the Act are therefore not applicable. The sub-section runs as follows:

4. The provisions on this Act shall not affect claims due in respect of-

(h) a mortgage-claim against property in the hands of a subsequent transferee who has taken the transfer in order to satisfy the mortgage.

On behalf of the judgment-debtor it is contended that the mortgage in favour of the decree-holders is not a subsequent mortgage because the earlier mortgage was paid off when this mortgage was executed. The recitals in the deed go to show that the present mortgage was executed to pay off earlier mortgage. The present mortgage is thus a subsequent mortgage with n the meaning of Section 4(h).

3. The next contention is that as the whole of the mortgage money was not borrowed for paying off the earlier mortgage Section 4(h) is not applicable. I am unable to agree with this contention. The mortgage cannot be split up into two mortgages one for Rs. 4000/- and the other for Rs. 2000/-.

4. Following the decision in Kajorilal v. Bhanwer Lal 1966 R.L.W. 616. I allow the revision application and set aside the order of abatement, I leave the parties to bear their own costs.


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