JUDGMENT Banerji and Aikman, JJ.
1. This appeal arises in a suit brought for sale upon a mortgage executed on the 16th of March 1894, by Gaya Prasad and Musammat Jasoda Kunwar in favour of the predecessor in title of the plaintiffs respondents. Musammat Jasoda Kunwar was the widow of one Munni Lal, who died on the 8th of January 1833. They had a daughter named Anpurna Kunwar, who was married to the appellant Ram Shankar Lal. Both Jasoda Kunwar and Anpurna Kunwar died in February 1896. Jasoda Kunwar, before her death, made a will on the 9th of July 1894, in favour of Anpurna, and Aupuma, on the 13th of February 1896, made a will in favour of her husband Ram Shankar Lal. The latter is in possession of the bulk of the mortgaged property since the death of his wife Anpurna Kunwar. Gaya Prasad, one of the mortgagors, is also dead. He is represented in this suit by his son Baldeo Das, The properties comprised in the mortgage consisted of:
(1) certain immovable property which admittedly had belonged to Munni Lal;
(2) mortgagee rights in certain properties acquired by Musammat Jasoda Kunwar after Munni Lal's death: and (3) property which stood in the name of Gaya Prasad Consisting partly of proprietary rights and partly of mortgagee rights.
2. The Court below has decreed the claim save as to certain items of property, which, it has held, formed part of the estate of Munni Lal to which Jasoda Kunwar succeeded. Baldeo Das, the son of Gaya Prasad, has submitted to the decree. Ram Shankar Lal, who resisted the claim in the Court below, has preferred this appeal. An objection under Section 561 of the Code of Civil Procedure has been filed by the plaintiffs respondents in regard to that portion of the claim which has been dismissed.
3. One of the pleas taken in this appeal was that no decree could be legally made for the sale of the mortgagee rights. This plea was supported by certain rulings of this Court, but, as we had doubts as to the correctness of those rulings, we referred the question to a Full Bench. The Full Bench has held that a decree for the sale of mortgagee rights can legally be passed in favour of a sub-mortgagee Supra, p. 385. This decision of the Full Bench disposes of the 4th plea taken in the memorandum of appeal.
4. The first two pleas raised on behalf of the appellant are that no portion of the consideration for the mortgage in suit was received by Jasoda Kunwar and that she executed the mortgage under the influence of the other mortgagor Gaya Prasad,
5. As regards the first of these pleas, it appears that the mortgage in question was executed in lieu of two prior mortgages, one of which was made by Gaya Prasad and the other by Jasoda Kunwar. We have considered the evidence, and it is clear that there was valid consideration for the mortgage in suit.
6. As to the plea of undue influence, the Court below found against the appellant and the learned advocate was unable to refer us to any evidence which would warrant us in. coming to a different conclusion.
7. It is next urged on behalf of the appellant that the properties comprised in the mortgage either belonged to Munni Lal or were acquired with funds left by him, and that such of the mortgaged properties as stood in the name of Gaya Prasad also belonged to Munni Lal, Gaya Prasad being only a benamidar. It is contended that this being so, the mortgagee was bound to prove legal necessity for the mortgage made by Jasoda. Kunwar and that he had failed to do so.
8. On behalf of the respondents it is argued that it was not open to the appellant to raise the above contention, inasmuch as he derived title under the will of his wife Anpurna Kunwar, who again derived title under the will of her mother Musammat Jasoda Kunwar, and, as the appellant is admittedly not the reversioner to the estate of Munni Lal, he cannot set up any defence which Musammat Jasoda Kunwar could not have put forward. In our opinion this contention of the respondents must prevail.
9. We may mention that in the will whereby Jasoda Kunwar bequeathed the property to her daughter it was distinctly provided that she was to pay off the incumbrances already existing on the property. There is a similar provision in the will made by Musammat Anpurna in favour of the appellant. If, therefore, the appellant took the property under that will, he took it subject to the incumbrance in favour of the plaintiffs, and he cannot plead that he is not bound to discharge it. He, however, contended in the Court below in the 12th paragraph of his written statement, and he also contends here, that he is not in possession under the will, but has acquired the property by virtue of a deed of acquittance executed in his favour on the 21st of January 1898, by Bhagwan Das and Mata Badal, the nephews of Munni Lal, who were reversioners to his estate after the death of his daughter Anpurna. We have, therefore to consider what title the defendant has acquired to the property. The document referred to above is printed at page 32 of the appellant's book. It recites that after the death of Anpurna "Ram Shankar Lal her husband, has been, under a will executed by Musammat Anpurua Kunwar on the 13th and registered on the 14th of February 1896, in proprietary possession of the entire property mentioned in the said will." The above extract negatives the defendant's allegation that it was under this document and not under the will that he got possession. In our judgment the title of the appellant to the property in question is derived from the will of His wife and the document referred to above only affirms and: recognizes that title.
10. After stating that disputes had arisen between Ram Shankar Lal and the executants regarding the validity of the will executed by Aupurna, and that the executants were contemplating the institution of a suit against Ram Shankar Lal for possession of the property, the document proceeds: "But thinking that we, the executants, shall have to undergo a good deal of trouble in carrying on the litigation, and that the result of the suit was also uncertain we settled the matter with Ram Shankar Lal aforesaid through the intercession of some of the members of the brotherhood in this way that Ram Shankar Lal aforesaid gave 11 bighas 17 biswas of land specified below, to us, and we, the executants, accepted and took the 11 bighas 17 biswas of land in lieu of our entire right which we had to the property left by Munni Lal and Musammat Jasoda Kunwar, our paternal uncle and aunt (respectively) and relinquish our claim to the entire movable and immovable properties, specified below, being the estate of Munni Lal and Musammat Jasoda Kunwar. We, the executants, and our heirs and representatives shall never have any kind of claim to or charge on the movable and immovable properties left by Munni Lal and Musammat Jasoda Kunwar."It is contended that this constitutes a transfer to Ram Shankar of the reversionary rights of Bhagwan Das and Mata Badal, the executants of the deed, and entitles him as representative of those persons to question the validity of the mortgage on any of the grounds on which those persons could have questioned it. We are unable to accede to this contention. We think that by this deed the executants of it, in view of the trouble and uncertainty which would attend a suit for possession of the property, relinquished their claim to the property, waived their claim to bring such a suit, and admitted the title by virtue of which Ram Shankar Lal was then in possession. It did not in our opinion clothe Ram Shankar Lal with all the rights which the executants had as reversioners to Munni Lal's estate. In support of this view we may refer to what was said in the following case: Rani Mewa Kunwar v. Rani Hulas Kunwar (1874) L.R., 1 L.A., 157, at p. 166, Gobind Krishna Narain v. Abdul Qayyum (1903) I.L.R., 35 All., 546, at p. 575., Bachhe Kunwar v. Dharam Das (1906) I.L.R., 28 All., 352. As observed by their Lordships of the Privy Council in the cage first mentioned, the deed of acquittance, which in reality is a compromise, "is based on the assumption that there was an antecedent title of some kind" and it "acknowledges and defines what that title is. "In this view Ram Shankar Lal took the property under the will made in his favour and under the terms of the will he took it subject to the liabilities which existed on it.
11. This relieves us of the necessity of considering the question as to what portion, if any, of the mortgaged properties formed part of Munni Lal's estate and whether there was legal necessity for the mortgage.
12. In this view the plaintiffs are entitled to a decree for sale of the whole of the property covered by the mortgage. The result is that we dismiss the appeal with costs and allow the objections of the respondents under Section 501 of the Code of Civil Procedure with costs. We vary the decree of the Court below by directing that the decree be for the sale of all the property comprised in the mortgage. We extend the time for payment of the mortgage money to the 26th September 1907. Up to that date the plaintiffs will get interest on the amount of the mortgage debt at the contract rate and thereafter at 6 per cent, per annum until date of realization.