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Uma Shanker Rai vs Ram Agyan Thakur And Ors.

High Court Of Judicature at Allahabad|22 December, 1938


1. This petition in revision arises out of an application made in the Court below by the respondents, Ram Agyan Thakur and others, under Sections 151, 152 and 153, Civil P.C., praying that a mistake, which, it was alleged, had crept into a simple mortgage deed executed in their favour and was also to be found in the plaint of the suit filed by them for the enforcement of that mortgage as well as in the decree, preliminary and final, passed in the suit, be corrected. The application has been granted by the Court below. The petitioner for revision before us, Uma Shankar Rai, is a subsequent transferee from the mortgagor. On 19th July 1916 one Bhagirathi Rai borrowed a sum of Rs. 615 from the predecessor-in-title of the decree-holders and executed u, deed, of simple mortgage in his favour hypothecating certain property which was described thus, "Hissa zail mai zamin abadi, party, mazrua, ghair mazrua, dih, basgit..." At the foot of the deed she specification of the property was given us follows : "Tafsil hissa mustagharqa... nam mama... mauza Barwa Ratanpur... taedad hissa mustagharqa... mavazi punch pai mauqua mahal No. 4..."
2. Thus the property that was hypothecated as security for the loan was specified is a five pies zamindari share situated in mahal No. 4 in village Barwa Ratanpur, together with abadi, parti and all other rights appertaining to that zamindari. In the year 1928, Ram Agyan Thakur and others, the respondents before us, filed a suit for sale on foot of this mortgage and on 31st October 1928 obtained a preliminary decree for sale. Subsequently on 2 2nd August 1931 a final decree was passed. The plaint in the suit asked for the sale of five pies zamindari share, situated in mahal No. 4 in village Barwa Ratanpur, alleging that that was the property mortgaged under the deed sued upon. The preliminary and the final decrees ordered the sale of that property. Later on, the mortgagees decree-holders filed the application out of which' this petition in revision has arisen, alleging, that what the mortgagor really intended to mortgage was not a five pies share, but his entire zamindari property in mahal No. 4 of that village, that it should have been described in the mortgage deed as "five shares" and that it was described in the deed as "five pies" by mistake. It was asserted that that mistake was repeated in the plaint also. It was prayed that the alleged mistake be corrected, not only in the decrees and the plaint, but also in the mortgage deed, by changing "five pies" to "five shares". The mortgagor having sub-seqent to the execution of the mortgage of 19th July 1916 transferred his property in this mahal to third parties, the application was opposed by the present applicant, before us, who was one of such transferees.
3. The Court below has granted the application and has ordered that the correction, prayed for be made. The Court remarks that the applicants have produced no direct evidence to show what the real intention of the parties to the mortgage deed in. question was. It has however relied on two circumstances for holding that the real intention of the parties at the time of the execution of the mortgage deed of 19th July 1916 must have been that the entire zamindari property of the mortgagor in the mahal in question should be hypothecated. The first circumstance mentioned by the Court is that the entries of the mortgagor's zamindari property in the khewats produced did not describe it in terms of annas and pies, but that the entry is "five shares." At the same time the Court found that the heading of the mahal in question: in the khewats is "mahal of 16 annas." The Court below itself expresses the opinion that the khewat entries by themselves do not show anything definitely. The second circumstance relied upon by the Court below is that if the share mortgaged be taken to be five pies, then its area, having regard to the total area owned by the mortgagor in this mahal, would come to 3§ acres approximately and, according to the Court below, the value of this area in the year 1916 was insufficient as security for an advance of Rs. 615. For arriving at this conclusion the Court below took into consideration certain sale deeds of the year 1921 and found that the price of one acre of land in this mahal in 1921 was from Rs. 108 to Rs. 131, and expressed the opinion that the value of zamindari property in 1916 was much lower than that prevailing in 1921. It is admitted that there are absolutely no materials on the record to justify this latter observation, and we are unable to agree that the value of zamindari property in 1916 was lower than its value in 1921. Further, the learned Munsif, when entering into these calculations, entirely failed to notice that the entire area owned by the mortgagor in this mahal, as mentioned by the Court below itself, was 31'9 acres and that its value according to the calculation of the Court below would have been in the neighbourhood of Rs. 4000. It is impossible to believe that it was intended by the parties to the mortgage transaction that property of this value should be hypothecated in lieu of an advance of Rs. 615. This shows that the basis on which the Court below has proceeded is not a reliable one.
4. The learned Counsel appearing for the applicant has contended that the Court below has no jurisdiction to pass the order in question. We are of opinion that this contention is well founded. The point arose in the recent Full Bench case in Gauri Shankar v. Shyam Sunder Lal (1938) 25 A.I.R. All. 466. but was not decided as it was found that the case could be disposed of on another point. The learned Counsel has relied on the ruling in Shujaatmand Khan v. Govind Behari (1934) 21 A.I.R. All. 100. That ruling supports his contention. The learned Counsel appearing for the respondents decree, holders has relied on the case in Azizullah Khan v. Court of Wards, Shahjehanpur (1932) 19 A.I.R. All. 587. In that case it was found that the mortgagor's zamindari property was situated in a village called "Nawadiya Zamania Nagla," but the name of the village was written in the deed as "Nagla Zamania Nawadiya." It was admitted by the parties that there was no village of the name of "Nagla Zamania Nawadiya" or, at least, there was no village of that name in which the mortgagor ever had any interest. It was further found that there never had been any doubt as to the identity of the property mortgaged. In these circumstances it was held that the application of the mortgagee to amend the decree could be granted. It was held that Section 95, Evidence Act, applied and that the Court had jurisdiction to call evidence for the purpose of showing that the mortgage deed did in fact relate to the property in Nawadiya Zamania Nagla. In our opinion that is a very different matter from the one that we have before us. This is a case which in our judgment is governed by the rule laid down in Section 94, Evidence Act. If the mortgagees had in the suit filed by them for the enforcement of their mortgage asked for the sale of the entire property of the mortgagor in this mahal namely, "five shares", instead of "five pies" as given in the mortgage deed, and had made the allegations which they have now made in their application for correction, the Court could not, in view of Section 94, Evidence Act, have allowed evidence to be produced to prove their allegations. We are of opinion that the} mortgagees cannot be allowed to obtain by this application made after the passing of the decree what they could not have obtained in the suit itself.
5. For the reasons given above we allow this petition in revision, set aside the order of the learned Additional Munsif dated 31st July 1937 and dismiss the application made by the mortgagees decree-holders for amendment praying that the description of the property be changed from "five pies share" situated in mahal No. 4 with all rights appurtenant to that share situated in mauza Barwa Ratanpur, into "five shares" situated in mahal No. 4 with all rights appertaining to the said share situated in village Barwa Ratanpur. The petitioner before us shall have his costs of these proceedings in this Court as well as in the Court below.
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Uma Shanker Rai vs Ram Agyan Thakur And Ors.


High Court Of Judicature at Allahabad

22 December, 1938