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Kallu And Anr. vs Faiyaz Ali Khan And Ors.

High Court Of Judicature at Allahabad|21 May, 1908


JUDGMENT George Knox and Aikman, JJ.
1. This appeal arises out of a suit brought by the appellants to recover possession of a half share in 76 bighas and 5 biswas, which was mortgaged by two brothers Sher Singh and Khaman Singh in 1858. The plaintiffs' allegation is that the mortgage debt has been satisfied by the usufruct. The brothers are said to have been separate and each is said to have mortgaged his half share of the property. The equity of redemption of Sher Singh was brought to sale in execution of a simple money decree held by Deokishen and was purchased by Deokishen himself. He is dead and is represented by his widow Musammat Ganga, respondent No. 2. Both the mortgagors Sher Singh and Khaman Singh are dead. Khaman Singh was succeeded by his widow Musammat Gaura, who is also dead. The plaintiffs claim as heirs to Khaman Singh. It appears that Khaman's widow Musammat Gaura executed a simple money bond on the 21st of December 1883 in favour of Deokishen for the sum of Rs. 95. Deokishen got a decree on the bond on the 8th of March 1887. In execution of that decree Gaura's rights and interests in the property mortgaged were sold and bought by One Ganga Prasad. On the 21st January 1889 Ganga Prasad sold these rights and interests to Ram Chandar, brother of Deokishen. On the 17th of March 1892 Deokishen brought a suit to redeem half the property. The defendants to the suit were (1) the predecessor in title of Nawab Sir Faiyaz Ali Khan, respondent No. 1, who had by purchase acquired the rights of the original mortgagees, (2) the plaintiff's brother Ram Chandar, and (3) the present appellants, the heirs of the mortgagors. Ram Chandar died daring the progress of that suit, and Deokishen, alleging that he was Ram Chandar's heir, amended his plaint and asked to redeem the whole 761/4 bighas. Only the representative of respondent No. 1 contested the suit. On the 13th September 1898 Deokishen got a decree for redemption of the whole property subject to the payment of Rs. 1,000 to Nawab Sir Faiyaz Ali Khan. Against this decree two appeals were preferred, one by Nawab Sir Faiyaz Ali Khan and the other by Deokishen. Deokishen died daring the pendency of the appeals, and his widow Musammat Ganga was brought on the record as his legal representative. The present plaintiffs were not made parties to the appeals. These appeals ended in a compromise, and a decree on the compromise was passed on the 20th of December 1900. Under the compromise both the appeals were withdrawn. Musammat Ganga was to get Rs. 4,000 and the decree of the lower Court for redemption was to be treated as if it never existed ("kaladam"). The Court of first instance dismissed this suit, finding that the debt incurred by Musammat Gaura was incurred for legal necessity, and that the sale in execution of the decree against her passed the whole of Khaman Singh's rights. One of the defences to the suit was that the plaintiff's suit was barred by the decree passed in the suit of Deokishen instituted on the 17th of March 1899. This plea was overruled by the Court of first instance. The plaintiffs appealed against the decree of that Court dismissing their claim, and the respondents filed an objection under Section 561 of the Code of Civil Procedure, assailing the finding of the first Court on the question of res judicata. The learned Additional Judge, without dealing with the question raised by the plaintiffs' appeal, sustained the objection filed by the respondent No. 1, and, holding that the plaintiffs' suit was barred by Section 13 of the Code of Civil Procedure, dismissed it. Against the decree of the lower appellate Court the plaintiffs have preferred the present appeal.
2. The first question we have to decide is, whether the sale in execution of the decree on the simple money bond executed by Musammat Gaura was a sale only of her life interest in the property or whether it passed the estate of her deceased husband Khaman Singh. As said above, the learned Munsif decided that the whole estate passed by the sale. In our opinion that decision cannot be supported. When Deokishen lent money to Musammat Gaura in 1883 he chose to do so on her personal security. He did not obtain from her any mortgage of her husband's property. That being so, we hold that any decree which he obtained on his simple money bond could only bind the rights and interests of his debtor on whose personal security he had advanced the money. Musammat Gaura is dead. She had only a widow's estate, and with her death the rights and interests in the property in suit purchased in execution of the decree against her came to an end. In support of this view we may refer to what is said in paragraph 641 of the 7th edition of Mayne's Hindu Law and to the case Dhiraj Singh v. Manga Ram Weekly Notes 1897, p. 67." This disposes of the first issue which we have to decide.
3. The next question that arises is whether the present suit of the plaintiffs is barred by what took place in the suit for redemption instituted by Deokishen in 1892. It is true that in that suit, by the amendment of his plaint, Deokishen claimed to redeem the whole property. It appears that in that suit no issue was framed as to whether in point of fact Deokishen did or did not own the equity of redemption, and consequently it cannot be said that the issue as to his owning the whole was" heard and finally decided" by the Court. The learned Counsel for the defendant, however, relies on explanation II to Section 13 of the Code of Civil Procedure, which enacts that any matter which might and ought to have been made a ground of defence in a former suit shall be deemed to have been a matter directly and substantially in issue in that suit. As we have said, the present plaintiffs did not appear to defend the suit, and the decree was passed exparte against them. The present plaintiffs might in that suit undoubtedly have raised the plea that Deokishen was not the owner of the equity of redemption of the whole of the property. But although they might have raised such a defence, we are of opinion that it was not incumbent on them to do so. It was not necessary for the Court to decide the issue as to the extent of Deokishen's rights to enable it to pass the decree which it did. Deokishen admittedly owned a share in the equity of redemption, and, that being so, he was entitled to redeem the whole. We hold that, this being so, the plaintiffs as representatives of one of the co-mortgagors were not bound in the previous suit to raise the issue as to whether or not Deokishen owned the equity of redemption over the whole. We hold, therefore, that the plaintiffs are not precluded by anything in the previous suit from maintaining their present claim. We have already held on the first question that we have to decide that the property itself did not pass at the sale in execution of the decree obtained against Musammat Gaura, but only her rights and interests. The plaintiffs as the heirs of one of the original co-mortgagors are therefore entitled to maintain this suit for redemption. Issues were remitted to the lower appellate Court to decide two questions of fact, namely, what was the amount secured by the mortgage which it is sought to redeem, and next, whether or not that amount has been discharged by the usufruct of the property. On these issues the lower appellate Court has found, first, that the amount secured by the mortgage is Rs. 425, and next, that the mortgage debt has long ago been discharged by the usufruct. Objections have been filed by the respondent. One objection is that on the finding of the lower appellate Court that the mortgage debt has been satisfied long ago out of the usufruct, the suit of the plaintiffs is barred by limitation. This plea, however, was abandoned before us. Another objection has been raised as to the finding of the lower Court in regard to the amount of the mortgage money. The respondents contended that the terms of the wajib-ul-arz of 1890 show that the amount secured by the mortgage was Rs. 1,000. We have examined this wajib-ul-arz and we agree with the construction placed on it by the lower appellate Court. We set aside the decrees of the Courts below and decree the plaintiffs' claim as set forth in relief (a) of the plaint. The plaintiffs will have their costs here and in the Courts below.
4. This case was very ably argued by the learned advocates for the parties, particularly by the learned advocate for the appellants.
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Kallu And Anr. vs Faiyaz Ali Khan And Ors.


High Court Of Judicature at Allahabad

21 May, 1908
  • G Knox
  • Aikman