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Kallu And Ors. vs Ram Chandar

High Court Of Judicature at Allahabad|24 July, 1908


JUDGMENT John Stanley, C.J. and Banerji, J.
1. The question raised in this appeal is whether persons who claimed to be reversionary heirs of a deceased mortgagor can, during the life-time of the mortgagor's widow, redeem a mortgage executed by the deceased. Diwan Singh was the mortgagor, and he executed the mortgage in question in favour of one Durga. His widow Musammat Earn Dei, is now in possession of the property. Ram Chandar, the defendant appellant, is a purchaser from Durga. No authority is shown for the proposition that a reversionary heir, who may or may not according to the circumstances overcome into possession of an estate, is entitled to redeem. The plaintiffs have no present interest in the property. Their interest is contingent upon their surviving the mortgagor's widow. The Court of first instance gave a decree for redemption and directed that on payment of the mortgage debt the plaintiffs should be put into possession. Now it is obvious that the plaintiffs have no right to possession in the lifetime of the mortgagor's widow. Therefore this provision of the decree is clearly wrong. Upon appeal the learned District Judge affirmed the decision of the Court below, with this modification that he directed that the provision in the decree awarding possession to the plaintiffs should be struck out. Notwithstanding this direction we find in the decree the same provision for possession. In it, it is stated that in the event of payment of the mortgage debt by the plaintiffs they shall be put into possession of the mortgaged property. On turning to Section 92 of the Transfer of Property Act, it is obvious that the provisions of that section cannot be complied with, if the suit is one by reversionary heirs, as is the case here, seeing that they are not entitled to possession of the mortgaged property and may never be so entitled. That section also provides that if payment is not made of the mortgaged debt in accordance with the earlier provision of the section, the plaintiff is to be absolutely debarred of all right to redeem the property or that the property be sold. This provision would be inapplicable to the case of plaintiffs who are only reversionary heirs and who may ultimately never become entitled to the property. It would not be binding upon other parties who upon the death of the widow would become actually entitled to it as heirs. The plaintiffs respondents rely upon the language of Section 91 (a) as giving them a right to redeem. This section provides that any person (other than the mortgagee of the interest sought to be redeemed) having any interest in or charge upon the property may redeem, and the contention is that the plaintiffs-respondents have such an interest. We think that the interest there referred to is a present interest and not a mere contingent right such as the plaintiffs possess. In view of the difficulty of carrying out a decree for redemption in a case of the kind, particularly in cases in which persons are entitled to an interest in the property for life in succession, as for instance the widow of a deceased mortgagor and after her the daughters of such mortgagor, we do not see our way to extend the meaning of the word "interest" as used in this section so as to embrace the chance of inheriting of a reversionary heir. It seems to us that possibly this suit was instituted by the plaintiffs with a view to obtain an equitable charge or lien upon the property which would enable them in future proceedings to sell the property or in some way deprive the widow of her life estate. For these reasons we allow the appeal. We set aside the decrees of both the lower Courts and dismiss the suit with costs in all Courts.
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Kallu And Ors. vs Ram Chandar


High Court Of Judicature at Allahabad

24 July, 1908
  • J Stanley
  • Banerji