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Aughore Kumar Ganguli and ors. Vs. Mohamed Mussa and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in2Ind.Cas.662
AppellantAughore Kumar Ganguli and ors.
RespondentMohamed Mussa and ors.
Cases ReferredTransfer of Property Act Sibendrapada Banerjee v. Secretary of State
parties - redemption suit--subsequent mortgage--redemption of portion of mortgaged property not allowable--transfer of property act (iv of 1882), sections 60, 85--rajinamah petition--evidence--admission,--no necessity of document for transfer of immovable properly before transfer of property act--costs--mortgagee to get costs in redemption suit unless guilty of misconduct--redemption suit dismissed for default of payment--res judicata--second suit barred. - 1. this is a suit filed by the plaintiffs j. nos. 1 to 9 as the heirs of one khudajannissa begum and by plaintiff no. 10, as the assignee of a moiety of the interest of plaintiffs nos. 1 to 9 as such heirs. the suit relates to two properties (1) a zemindari known as pargana amirpur balanda distinguished by towzi no. 586 in the collectorate of the 24-parganahs and (2) a lakhiraj resumed zemindari known as mauza ranigachi and goberdhanpur 'distinguished by towzi no. 1161 in the same collectorate. the second estate, we are told, was included in and has been carved out of the first estate. by their plaint as originally framed the plaintiffs asked for possession of the properties in suit on the ground that a mortgage of 22nd july 1848 to which those properties had been subject had been paid.....

1. This is a suit filed by the plaintiffs J. Nos. 1 to 9 as the heirs of one Khudajannissa Begum and by plaintiff No. 10, as the assignee of a moiety of the interest of plaintiffs Nos. 1 to 9 as such heirs. The suit relates to two properties (1) a zemindari known as Pargana Amirpur Balanda distinguished by Towzi No. 586 in the collectorate of the 24-Parganahs and (2) a lakhiraj resumed zemindari known as Mauza Ranigachi and Goberdhanpur 'distinguished by Towzi No. 1161 in the same collectorate. The second estate, we are told, was included in and has been carved out of the first estate. By their plaint as originally framed the plaintiffs asked for possession of the properties in suit on the ground that a mortgage of 22nd July 1848 to which those properties had been subject had been paid off; they further prayed that an account might be taken of what was due to the defendants as mortgagees under that mortgage; that if defendants had been over-paid a decree might be passed against them for the excess, and that if anything were found due to the defendants the plaintiffs might be allowed to redeem the said properties, the plaint also contained a prayer for a declaration that a mortgage, dated 4th April 1871, and executed by Khudajannissa Begum in favour of Aruna Prakash Gangully was invalid and inoperative, and that a deed of gift by the same lady to Mirza Ahmed Ali Beg, the husband of her grand-daughter, dated 14th September 1887, was a benami transaction and did not operate to convey any right or title to the donee. These last prayers, which were comprised in paragraph 3 of the prayer 'of the plaint, were given up by the plaintiffs at the hearing and were by order of the 13th August 1908 expunged. The plaint, however, was not further amended, nor was any prayer added for redemption of the mortgage of 1871. The learned Subordinate Judge has passed a decree in favour of the plaintiffs for an account and for redemption of both the mortgages, and has further allowed the plaintiffs their costs of suit against the defendants Nos. 2, 3 and 4. The first defendant has admittedly no present interest in the properties in suit, and it is not clear why the decree for account was passed against him, He appears to be siding with the plaintiffs. Defendants Nos. 2, 3 and 4 have preferred this appeal.

2. There is little or no dispute as to the facts of the case, but as they have not been fully stated by the learned Subordinate Judge it may be as well that we should set them out in detail. By a mortgage of 22nd July 1848 Munshi Fazlul Karim conveyed the two properties, in suit along with a very large number of other properties to one Ram Chand Mukerjee by way of mortgage to secure a sum of Rs. 1,40,000 and interest. That deed comprised besides the Pargana Amirpur Balanda 14 other properties, some of which belonged solely to Munshi Fazlul Karim, and some to him and his brother Manshi Bazlur Rahim jointly. In these latter only the moiety of Munshi Fazlul Karim was mortgaged.

3. By a bill of sale dated 20th September 1850 Munshi Fazlui Karim sold the Pargana Amirpur Balanda, subject to the above mentioned mortgage, to his wife Khudajannissa Begum. This deed is not forthcoming. We can only gather its terms and the property comprised in it from recitals in later documents. It appears to have been a transfer in lieu of dower.

4. On 14th February 1851 Khudajannissa Begum filed a claim in the Supreme Court against Ram Chand Mukerjee and her husband Munshi Fazlul Karim, and in that suit a consent decree was passed on 18th February 1851. Unfortunately besides the decree, an order of 2nd December 1857, varying the decree, and an order of the Master, dated 24th April 1863, the records of this suit are not forthcoming. It is, however, apparent from the decree that the suit was one for redemption. It provided for payment of the amount then due for principal and interest upon the mortgage by yearly instalments of Rs. 24,000. In case of payment of the whole debt in that manner the entire mortgaged premises were to be conveyed by the mortgagee to the plaintiff Khudajannissa Begum. In case of default in payment of any instalment the decree provided (as an ordinary redemption decree) for an account for payment by the plaintiff within six months and in default of payment for dismissal of the suit. The decree further provided that Munshi Fazlul Karim should repay to the plaintiff what she might pay and get from her a reconveyance of such of the mortgaged premises as were not included in the bill of sale, and in default of such payment by him he should stand absolutely debarred and foreclosed of the equity of redemption in the last mentioned premises.

5. On 16th August 1853, Khudajannissa Begum granted a putni lease of the properties now in suit to one Pran Nath Rai Chowdhuri. The rent reserved was Rs. 35,400 per annum. Of this the Government revenue was Rs. 19,888-10-5, leaving Rs. 15,511-6-3 malikana for the lessor.

6. On 20th May 1856 Munshi Fazlul Karim died leaving his widow Khudajannissa Begum, three sons and two daughters him surviving, and the suit of Khudajannissa Begum in the Supreme Court was revived against the sons and daughters as his representatives.

7. On 2nd December 1857 the. decree of the 18th February 1851 was varied by consent of parties. The rate of interest was reduced from 12 to 8 per cent. per annum and the instalments of Rs. 24,000 were reduced to Rs. 13,000.

8. On 1st October 1862 Ram Chand Mukerjee died leaving throe sons, Panchanan, Ram Lal and Shoshi Bhusan him surviving. He left a will, of which he appointed his three sons executors and. by which he bequeathed the moneys due on the mortgage of 22nd July 1848 to them. The three sons duly proved the will.

9. On 24th April 1863, the Master reported that the reference to him under the decree of 18th February 1851 had not been proceeded with, that the reference might be presumed to have been abandoned, and he fixed one week within which his certificate should be brought before the Court. From this date there is no trace of what happened to Khudajannissa Begum's suit of 1851. We may, we think, presume it was struck off for want of prosecution of the reference. It cannot be regarded as a pending suit, as it would then have a place, which it has not, on the file of suits pending in the High Court.

10. On 14th November 1870, Khudajannissa Begum and the three sons of Ram Chand Mukerjee entered into an agreement, and Khudajannissa Begum executed a registered deed embodying it. By that deed the mortgage of 1848 was clearly regarded by the parties as still outstanding. The principal of the mortgage debt was fixed at Rs. 1,16,754-5-6, and the interest then due at Rs. 51,204-4-0. It was arranged that these sums should be paid off by yearly instalments of Rs. 12,000, and for that purpose Khudajannissa Begum was to appoint Panchanan Mukerjee as her constituted attorney to collect the rent due under the putni lease, apply Rs. 12,000 out of it in payment of the annual instalments and pay the balance to Khudajannissa Begum.

11. The power-of-attorney in favour of Panchanan Mukerjee was executed on the same day, 14th November 1870.

12. By an indenture, dated 4th April, 1871, Khudajannissa Begum purported to create a second mortgage on all the properties comprised in the mortgage of 1848 in favour of Aruna Prakash Gangully, son-in-law of Panchanan Mukerjee, to secure Rs. 20,000 advanced to her by Aruna. It is this deed which the present plaintiffs at first desired to avoid. That plea, which was clearly untenable in the face of Khudajannissa, Begum's admission in her deposition of 30th April 1875 in suit No. 274 of 1878, was, as we have said, afterwards withdrawn.

13. Khudajannissa Begum appears to have prohibited the payment of the putni rent to Panchanan from the month of Chaitra 1279 (April 1873). A suit was filed against her by the three Mukerjees (suit No. 87 of 1873) in which they claimed a declaration that the agreement of 14th November 1870 was binding upon her; that she should be restrained from obstructing them in the realisation of the rents; and that an order should be made upon the Collector to pay to them the rent then realised, Rs. 6,775. This suit was compromised between Khudajannissa Begum and the Mukerjees. The rajinama, dated 26th November 1873, is upon the record (Ex. N). We shall deal later with the question whether and how far it is admissible in evidence for want of registration. In it Khudajannissa Begum states, contrary to the fact, that she had obtained from her husband in hebu in lieu of dower money all the properties comprised in the mortgage of 1848. She then goes on to state that the amount due to the three brothers Mukerjees is Rs. 1,50,000 and the amount due to Aruna Prakash Gangully with interest is Rs. 50,000. Being unable to pay those Rs. 2,00,030 she had arranged to execute a deed of absolute sale to Aruna Prakash Gangully of a 8 annas, 1 ganda, 3 karas, 2 hags, 5 tils share of the malikana in lieu of the Rs. 50,000 and to the three brothers, Mukerjees, of a 9 annas, 5 gandas, 2 karas, 2 kags, 15 tils share in lieu of Rs. 1,50,000, in all 12 annas, 7 gandas, 2 karas, 1 kag, proportionately, amounting to Rs. 12,000, the entire malikana being Rs. 15,511-6-3. The rajinama, further states that the Mukerjees and Aruna Prakash Gangully had consented to the arrangement and had released the said taluks and all the other properties covered by the mortgage deed to Khudajannissa Begum free from the liability for the debt; that from Baisakh 1281 (April 1874) they would realise 12 annas, 7 gandas, 2 karas, 1 kag (approximately 4/5th) of the malikana, which she would realise, the remaining 3 annas, 12 gandas, 1 kara, 2 kags (or approximately l/5th). The power-of-at-torney in favour of Panchanari was to be cancelled from 1st Baisakh 1281, and the Mukerjees and Aruna Prakash Gangully were to get their names registered in the collectorate in respect of the 4/5ths share.

14. On 28th November 1873 it was ordered that the suit be decided in pursuance of the terms of the rajinama, and that it be struck off from the list of pending causes. The decree was signed and sealed on 6th December 1873.

15. In 1874 the three sons of Ram Chand Mukerjee fell out, and Sashi Bhusan filed a suit in the High Court (No. 277 of 1874) against his two brothers for an account of the, joint estate and for partition. The proceedings in that suit, which went up to the Court of Appeal, are not very material to the present case, except in so far as the learned Judges expressed a decided opinion that Panchanan was not the karta of a joint Hindu family, and that there was in fact no joint estate except the mortgage debt of their father Ram Chand, in which they were jointly interested.

16. The arrangement come to between Khudajannissa Begum and the Murkerjees and Aruna Prakash Gangully in December 1873 was not embodied in deeds of sale as had been intended. In other respects there can be no doubt whatever that it was given effect to. For instance, on 13th August 1875 we find the Collector writing to Panchanan Mukerjee that Khudajannissa Begum had applied for the payment to her of the 3 annas, 12 gandas, 7 kags share of the malikana, and that if no case to the contrary were shown her request would be complied with.

17. On 2nd October 1875 Khudajannissa Begum executed a mortgage in favour of Moti Lal Dhur to secure Rs. 57,395 (Ex. A). This is a most important document. In it, it is recited that the terms of the compromise of November 1873 had been fully ' carried out, that the Mukerjees and Aruna Prakash Gangully had become absolute owners of the 4/5th and Khudajannissa Begum the absolute owner of the remaining l/5th share and that the mutual conveyances and re-conveyances were in course of preparation. By that deed Khudajannissa Begum purported to create a first charge on her l/5th share which she could not have done if the mortgage of 1848 had been then subsisting.

18. Exhibits T to T-10 and Exhibits X, X-l, X-5 and X-9 show that in 1876 and 1877 the malikana was being paid to these several persons in proportion to their respective shares.

19. On 7th April 1877 Panchanan purchased the share of his brother Ram Lal (Ex. H-l). The registration proceedings before the Collector on 29th January 1878 are also important. Khudajannissa Begum objected to the registration of the names of the Mukerjees and Aruna Prakash Gangully on the ground that the contract of purchase had not been completed. Her objection was disallowed 'as Khudajannissa Begum does not pretend to say that the parties are not in possession,' and it was ordered that the names of the following parties be registered as in proprietary possession of estate No. 586, Balanda--

a g. k. kg. t.Khudajannissa Begum ... 3 12 1 3 0Panchanan Mukerjee ... 6 3 3 0 10Sashi Bhusan Mukerjee ... 3 1 3 2 5Aruna PrakashGangully ... 3 1 3 2 5and that Moti Lal Dhur's name be registered as mortgagee of Khudajannissa Begum's share.

20. On 24th August 1878 a similar order was made as to Mauza Ranigachi and Goberdhanpur (No. 1161), Khudajannissa Begum's objection on the same ground being overruled.

21. On the 11th January 1880 Panchanan Mukerjee transferred to Aruna Prakash Gangully the share of his brother Ram Lal which he had purchased (Ex. 0) and on 4th August 1880 Aruna Prakash Gangully got his name registered in respect of that share (Ex. D-2). On 2nd September 1882 Sashi Bhusan Mukerjee sold to Shamal Dhan Dutt, defendant 4, his interest in the mortgaged properties (Ex. 4-A). He had previously mortgaged the same to Shamal Dhan Dutt on 12th September 1875 (Ex. 14).

22. Sashi Bhusan Mukerjee had filed a suit against Khudajannissa Begum (No. 66 of 1879) and obtained a decree, in execution of which he attached her 3 annas, 12 gandas, 1 kara, 2 kags share in the properties now in suit, and on its being brought to sale he purchased it himself. The sale certificate is dated 7th October 1882, but it does not appear that Sashi Bhusan even attempted to take possession of that share.

23. Khudajannissa Begum certainly continued to treat that portion of the property as her own. On 14th September 1887 she executed a deed of gift of it in favour of Mirza Ahmed Ali Beg, the value of the 'property being stated as about Rs. 4,000. This deed was attested by her heirs, her two surviving sons, the present plaintiffs Mohamed Massa and Mohamed Zakaria, and her two daughters, Nurannissa Bibi and Jibannissa Bibi. The plaintiffs now allege that this deed was never given effect to and is inoperative. In their plaint (para. 9) they speak of it as a benami transaction, which is of course incorrect. It is now conceded that the intention was that Ahmed Ali Beg should take steps under the title so given him to free some of the mortgaged properties.

24. On 7th July 1890 Khudajannissa Begum died. On 1st June 1892 Panchanan Mukerjee conveyed his l/5th share in the properties in suit (along with other properties) to Aruna Prakash Gangully (Ex. P), and on 2nd August 1892 Aruna Prakash Gangully's name was registered as owner (Ex. D-3). Aruna Prakash Gangully thus became entitled to three 1/5th shares.

25. Soon after this Panchanan Mukerjee died. On 8th January 1896 the two sons and two daughters of Khudajannissa Beguni executed a conveyance to a Mrs. Morgan of a moiety of the properties now in suit for the nominal price of Rs. 1,000, and it was agreed that Mrs. Morgan should apply for letters of administration to Khudajannissa Begum's estate; that she should institute a suit or suits for account against the mortgagees, both under the mortgage of 1848 and the mortgage to Moti Lal Dhar, and that she should finance her vendors. It appears that nothing was done in pursuance of this agreement. Probably the Rs. 1,000 were never paid as Mrs. Morgan seems to have backed out of the arrangement. (See Exs. Y and T-1).

26. Plaintiff No. 10, Munshi Abdul Aziz, was then found to take up the part of Champertor, and by an indenture dated 3rd October 1907', plaintiffs Nos. 1 to 9 purported to convey to him for a consideration of Rs. 50,000 a 12 annas, 7 gandas, 2 karas, 1 kag share in the properties in suit, of which share it was falsely recited that Khudajannissa Begum was at the time of her death the sole and 'absolute owner.

27. The next step was the institution of this suit on 2nd January 1908.

28. On 21st April 1908 the plaintiffs obtained a reconveyance from Mrs. Morgan of the undivided moiety in the properties in suit which had been conveyed to her in 1896, but at the time of the filing of the suit, the title to that moiety was in Mrs. Morgan, who was not and is not a party.

29. Such being the undisputed facts of the case, the question is whether the plaintiff's suit as framed can possibly succeed. The learned pleader for the appellant raised a number of objections, several of which appear to us to be insuperable.

30. It was first urged that Khudajannissa Be-gum's suit for redemption in 1851 must be regarded either as having been dismissed Or as still pending. If the former, this suit is barred, as the matter is res judicata. If the latter, this suit cannot proceed by reason of the provisions of Section 12 of the C. P. C., 1882. We have already said that we do not think that it can be regarded as still pending, but it is not possible, on the other hand, to state precisely whether and how it was dismissed. Until we know the circumstances of the dismissal it is impossible to lay down with certainty what would be its effect. The rule in England is that the dismissal of an action to redeem by reason of default in payment of the money or for any cause other than want of prosecution operates as a judgment of foreclosure, in Roy Dhinkur Doyal v. Sheo Golam Singh 22 W.R. 172; Phear, J. expressed a doubt whether the Civil Courts in this country have the jurisdiction to foreclose in this way the mortgagor's right to redeem, so long as his right of suit is not barred by the statute of limitation. He was, however, then dealing with a mortgage in the mofussil by zurpeshgi lease, and the decree in question did not purport to effect a foreclosure. In this case the decree provided that in default of payment, the plaintiff's suit should stand dismissed. If it was dismissed in default of payment, it would be difficult to argue that the matter was not res judicata between the parties. This was the view taken by the Madras High Court in Vedapuratti v. Vallabha Valiya Raja 25 M. 300. The case of Sitaram v. Madho Lall 24 A. 44 (F. B.) relied upon by respondents' counsel turned upon a decree in a suit to redeem a usufructuary mortgage, and the decree was very peculiarly worded. Banerjee, J., while holding that in that case a second suit to redeem was not barred, remarked: ' If the decree in the first suit provides in distinct terms that in case of default of payment the mortgagor will be debarred from redeeming the mortgaged property, afterwards a second suit would be clearly barred under the rule of res judicata.' Here it was provided that the plaintiff's suit ' should stand dismissed.' If Munshi Fazlul Karim did not pay the plaintiff what was due to her, he was ' to stand absolutely debarred and foreclosed.' It can hardly be said that the suit was dismissed for want of prosecution inasmuch as it went on to decree, and it was only after the decree that the plaintiff made default. We incline to the opinion that the decree in the suit of 1851 would operate as a bar to the present suit, which is admittedly brought by Khudajannissa Begum's representatives in interest. It is, however, in the view that we take of the case in other respects unnecessary to decide this point.

31. The next question with which we have to deal is the want of parties necessary to the suit. It was urged that Mrs. Morgan, in whom at the date of institution of the suit the equity of redemption in a moiety of the property in suit was vested, was a necessary party plaintiff. It has been mentioned that she reconveyed this moiety to the plaintiffs in April 1903, and plaintiff's title so far as she was concerned was thereby completed. The only question that could arise on this would be one of limitation. Taking the suit to have been filed in April 1908 it would still be within 60 years from 22nd July 1848. The objection, therefore, as to Mrs. Morgan is not insuperable. It was next contended that Moti Lal Dhar or his representatives were necessary parties defendants, and we think that that is so. Khudajannissa Begum created a mortgage in his favour of her l/5th share in the properties now in suit. She purported to create a first charge upon that l/5th share, but if, as plaintiffs now contend, the mortgages of 1848 and 1871 are still subsisting, it would be only a third charge. It would none-the-less be necessary in a suit for redemption of the prior mortgages to make Moti Lal Dhar or his representatives parties, as they are clearly interested in the properties in suit to the extent of their mortgage of 1875. It was further objected, and with equal reason, that the persons interested in the several properties comprised in the mortgage of 1848, other than the two properties now in suit, are not disclosed and are not before the Court. We do not know what has been the devolution of those properties or in whom they are now (subject to the mortgage) vested. It is difficult to see how this suit could be satisfactorily determined in their absence. It may be that plaintiffs Nos. 1--9 as heirs of Munshi Fazlul Karim and Khudajannissa Begum are the proper persons to sue in respect of those properties, but this is nowhere shown.

32. The next objection, that this suit must fail, being a suit to redeem only a portion of the properties mortgaged, appears to us to be fatal. It is a well recognised rule that a person interested in a share of the property mortgaged cannot be compelled nor can he claim to redeem a part without redeeming the whole. See Fisher on mortgage page 694; Hall v. Heward 32 Ch. D. 430 and Transfer of Property Act, 1882 Section 60. That this suit is for redemption of a part only of the property mortgaged there can be no doubt whatever, and the learned Counsel for the respondents had no answer to this objection. The first issue raised dealt with this question, but the learned Subordinate Judge has considered it (and that very cursorily) only in relation to the alleged possession by the plaintiffs on their mortgages of a 1/5th share in the properties. We think that on this ground alone the suit must fail.

33. The next point for determination is whether the relationship of mortgagor and mortgagee was not in fact determined in 1873. If it was there would be no mortgage now subsisting which plaintiffs could claim to redeem. It was further contended for the appellants that from 1873 the title of the mortgagees had become adverse; that the suit as against them was barred by limitation, and that in any event the suit as against Shamal Dhone Dutt was barred under the provisions of article 134 of schedule II of the Limitation Act, 1877. If the mortgages be held to have been determined in 1873, no questions as to limitation would arise. There could be no suit to redeem, and the suit as one for possession would obviously be out of time. The issues dealing with this part of the case are 5, 6, 8, 9 and 10. With all respect to the learned Subordinate Judge, he does not appear in dealing with these issues to have correctly appreciated the undisputed facts of the case. He held that the rajinama being insufficiently stamped and unregistered did not operate as a release of the equity of redemption, that the possession was all along with the mortgagees, that without actual delivery of possession there could be no transfer by parol, that the change in the mode of possession was not sufficient, and that the mortgages were still subsisting. There can be no doubt that a mortgagor is competent to release his equity' of redemption. The, question is whether Khudajannissa Begum in this case effectually did so. With regard to the rajinama (Ex. A.) it may at once be conceded that it did not operate as such a release. It did not purport to do so, nor indeed to declare, create or extinguish any right in immovable property. It was a petition filed in Court by Khudajannissa Begum in suit No. 87 of 1873 to the particulars in which the Mukerjees signified their consent. It is clearly admissible in evidence as an admission by Khudajannissa Begum of the agreement at which she had arrived with her mortgagees. No question of want of stamp or registration really arises in connection with the rajinama, inasmuch as it could not from its terms be used for purposes which would necessitate stamping (otherwise than as a petition) or registration. In this respect the case is clearly distinguishable from Biraj Mohini Dassi v. Kedar Nath Karmokur 12 C.W.N. 854 where the compromise petition formed the root of the plaintiff's title. With reference to the remark of the learned Subordinate Judge that the terms of the rajinama were not incorporated in the decree and the rajinama cannot be considered a part of it, we may notice that the suit was decided in pursuance of those terms, the rajinama being on the Court file. The rajinama is, however, very good evidence of what the parties had orally agreed to do. The question is, did they carry out that agreement? It was no doubt contemplated that the release should be effected by mutual conveyances. Such documents were not, however, before the 1st of July 1882 (when the Transfer of Property Act came into force) necessary for the transfer of immovable property. The learned Subordinate Judge disposes of this portion of the case by remarking: In this case the possession was with the mortgagees and no valid transfer could be made.' The ruling oh which he relies in this connection has obviously no application, as it turned on the construction of Section 54 of the Transfer of Property Act Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207. It is, however, by no means clear that mortgagees were in possession even at the date of the rajinama or up to 1st Baisakh 1281 (April, 1874) Panchanan Mukerjee, it is true, was receiving the whole rent under the putni lease, retaining Rs. 12,000 for himself and his brothers and making over the remainder to Khudajanmissa Begum. He was doing this by virtue of the power-of-attorney executed by her in his favour and it might not unreasonably be argued that he was in that respect acting as her agent and not in his capacity as one of the mortgagees. There is certainly not sufficient evidence in this case to support the conclusion arrived at by the learned Subordinate Judge that Panchanan was karta of the family and as such his possession must be regarded as the possession of all the three mortgagees. This opinion is directly against the findings of this Court in Suit No. 277 of 1874 though no doubt those decisions are not binding on these plaintiffs. Even if it were certain that the mortgagees were mortgagees in possession in December l873, it is equally certain that very shortly after that they ceased to be so. In August 1875 as has been stated Khudajannissa Begum was applying for the separate payment of her 1/5th share of the income under the putni lease, and in October 1875 she executed the mortgage in favour of Moti Lal Dhar. The learned Subordinate Judge says that the recitals in that mortgage would not create title in favour of any body.' They would not, but as admissions by Khudajannissa Begum, they are practically conclusive that the release of the equity of redemption had been effected in the manner arranged, with the single exception that it was not embodied in registered deeds of conveyance, which, as we have said, were unnecessary. From this time forward the parties have been in inclusive enjoyment of their several shares. This again was confirmed by the registration proceedings in 1878 and by subsequent registration proceedings when the transfers of shares among the Mukerjees and Aruna Prakash Gangully took place. That there was good consideration for the release by Khudajannissa Begum, there is no doubt. For her surrender to the mortgagees of 4/5th of the properties now in suit, comprised in the putni lease, she obtained a complete discharge from the whole debt on both mortgages amounting to Rs. 2,00,000 and took over 1/5th of those properties and all the other properties comprised in the mortgages of 1848 and 1871 free from all liability. In these circumstances we hold that the arrangement of 1873 was carried into effect and that the mortgages, of 1848 and 1871 were, thereby, extinguished. We are unable to see that Section 92 Provision (4) of the Evidence Act has any bearing in the case.

34. That being our opinion on this part of the case it is unnecessary to consider the question of limitation, either generally or with special reference to the purchase by Shamal Dhone Dutt. We may, however, note, that as a matter of fact Shamal Dhone Dutt, in our opinion, purchased with full notice of the mortgages of 1S48 and 1871, and must be held to have purchased what he knew his vendor had to sell, namely his interest as one of the mortgagees in these properties. Nor is it necessary to decide what was the effect of the deed of gift by Khudajannissa Begum to Mirza Ahmed Ali Beg. It is clear that he never took possession of any properties under it, and the document seems to have been given by him to Mahomed Abdul Aziz, with whom it remained. It is unnecessary also to decide whether Khudajannissa Begum and through her the plaintiffs are estopped from disputing the agreement of which Khudajannessa Begum took the benefit. That lady obtained a l/5th share of the properties now in suit and all the other properties mortgaged freed from the mortgages. She then executed a fresh mortgage of her l/5th share. It is difficult to see how her representatives can now be heard to say that the mortgages of 1848 and 1871 so dealt with by her are still subsisting and claim to redeem the 4/5th share in these properties which Khudajannissa Begum sold away.

35. The only other points which we need mention are those of costs and the decree passed by the lower Court in respect of the mortgage of 1871. As in our view of the case the decree of the learned Subordinate Judge cannot stand, it is not really necessary to deal with his order as to costs. But we may remark that nothing has transpired in this case to indicate that the mortgagees have been guilty of such misconduct as would take the case out of the general rule that in a redemption suit the mortgagee is entitled to his costs.

36. The learned Subordinate Judge has also granted a decree in respect of the mortgage of 1871. It is not clear how that could have been done without a proper amendment of the plaint. Paragraph 3. of the prayer was expunged, but nothing appears to have been substituted in its place. As in our opinion the suit must fail, we need not further discuss this point.

37. The appeal is allowed and the plaintiff's suit is dismissed. Defendants Nos. 2, 3 and 4 must have their costs in both Courts from the plaintiffs.

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