Court : Allahabad
Reported in : 15Ind.Cas.876
1. This was a suit upon a mortgage. dated the 15th of March 1890, executed in favour of the predecessor-in-interest of the plaintiffs. Three sons of the original mortgagee brought the suit. An adult and a minor member of the joint family were not made plaintiffs. The Court of first instance treated the suit by the plaintiffs as by the managers of a joint- Hindu family and gave them a decree. On appeal, the lower Appellate Court decided all the other points raised in the appeal in favour of the plaintiffs and came to the conclusion that the adult son and minor grand-son were necessary parties and that as they were not impleaded within the period of limitation, the defect was fatal to the suit. The son and the grandson in the lower Appellate Court filed an affidavit to the effect that the plaintiffs had instituted the suit in their capacity of the managers of the joint family. But the lower Appellate Court thought that that affidavit was too late. In second appeal, it is urged that the s...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.685
Chamier, J.1. This appeal arises out of a suit for redemption of a mortgage alleged to have been made by one Imam Baksh in 1859. The plaintiffs are the grand children and great-grand children of Imam Baksh. Defendants Nos. 1 to 5 are the sons and grandsons of one of the three original mortgagees and defendants Nos. 6 and 7 are the other two original mortgagees. Defendants Nos. 8 to 11 are purchasers of the equity of redemption in two thirds of the mortgaged property, who, according to the plaintiffs, declined to join in the suit.2. The suit has been thrown out by the Courts below on the ground that it is barred by Section 233 (k) of the Land Revenue Act, 1901.3. The facts have not been ascertained but they must, for the purposes of this appeal, be assumed to be as follows. Imam Bukhsh was recorded at the Settlement of 1872 as the owner of 80 bighas, 9 biswas of land, the correct area of which, according to the settlement of 1890, was 77 bighas, 17 biswas. He mortgaged the land to defen...
Tag this Judgment!Court : Allahabad
Reported in : (1912)ILR34All659
Henry Richards, C.J. and Baneeji, J.1. The vendors of the plaintiffs in this appeal made a usufructuary mortgage in favour of the defendants of the second party. The consideration for the mortgage was Rs. 599-15-0. All save Rs. 50-15-0 were left with the mortgagees for payment of creditors of the mortgagors. It has been found as the result of certain issues which we referred to the court below that the creditors were prior incumbrancers of the mortgaged property, and that the mortgagee never discharged the incumbrances. The usufructuary mortgage was by way of conditional sale and provided that the property should not be redeemed for ten years. The present suit is in form a suit to redeem the property upon payment of Rs. 50-15-0, which was the full amount of the consideration given by the mortgagees. The defendants, second party, contend that the plaintiffs cannot redeem the property or get possession of it until the expiration of the term of ten years, and this notwithstanding that the...
Tag this Judgment!Court : Allahabad
Reported in : 18Ind.Cas.899
1. On the 13th of October 1891, Ram Sahai, ancestor of the defendants, mortgaged two shops with possession to the plaintiff, Tulshi Ram. The following day he took a further loan of Rs. 200 and executed a kabuliat, duly registered, by which he undertook to hold one of the two shops as a tenant for two years at a rent of Rs. 15 a year.2. The plaintiff's case is that Ram Sahai died in 1902, having held on as tenant from year to year and paid rent regularly up to the time of his death. The present defendants, who are heirs and successors of Ram Sahai, have paid no rent. The plaintiff sues to recover possession and Rs. 45 as damages. The lower Appellate Court has found that it is not proved that Ram Sahai paid any rent after the 14th of October 1893 that is to say, after the determination of his two years' tenancy, and has accordingly dismissed the suit as barred by limitation under Article 139 of the first Schedule to the Indian Limitation Act, IX of, 1908. The plaintiff comes to this Cour...
Tag this Judgment!Court : Allahabad
Reported in : 17Ind.Cas.340
1. The vendors of the plaintiffs in this appeal made a usufructuary mortgage in favour of the defendants of the second party. The consideration for the mortgage was Rs. 599-15-0. All save Rs. 50-15-0 were left with the mortgagees for payment of creditors of the mortgagors. It has been found, as the result of certain issues which we referred to the Court below, that the creditors were prior incumbrancers of the mortgaged property, and that the mortgagee never discharged the incumbrances. The usufructuary mortgage was by way of conditional sale and provided that the property should not be redeemed for ten years. The present suit is in form a suit to redeem the property upon payment of Rs. 50-15-0, which was the full amount of the consideration given by the mortgagees. The defendants, second party, contend that the plaintiffs cannot redeem the property or get possession of it until the expiration of the term of ten years, and this notwithstanding that the prior incumbrances, to meet which...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.33
1. The defendants, Durga Prasad and Salig Ram, who kept a shop in Benares, styled 'Durga Prasad-Salig Ram', borrowed a sum of Rs. 1,200, from the plaintiff on a hundi dated the 22nd June 1910, payable in 91 days. The hundi was dishonoured when presented for payment on the 7th August 1910.2. The plaintiff, therefore, sued for the money with interest on the 18th August 1910. Various pleas were raised in defence, one of which was that the hundi being insufficiently stamped was inadmissible in evidence. The Court of first instance found that the terms of the loan were embodied in the hundi and that the cause of action was not complete independently of the hundi, but, following Sri Nath Das v. Angud Singh 7 A.L.J. 459 : 6 Ind. Cas. 126 came to the conclusion that evidence aliunde was admissible to prove the debt and decreed the plaintiff's suit. On appeal, the lower Appellate Court came to the conclusion that evidence was not admissible apart from the hundi and that the case fell within the...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.42
Chamier, J.1. This was a suit by the appellant for possession of lands mortgaged to him by the first respondent in August 190?; in the alternative, he prayed for a decree for the mortgage-money against the mortgagor personally. It is now conceded on behalf of the appellant that he is not entitled to a decree for possession of the property in-as-much as part of that property is an occupancy-holding. The only question is whether he is entitled to a money-decree against the mortgagor. It appears to me that the case is covered by the decisions in Murlidhar v. Pem Raj 22 A. 205 and Dipan Rai v. Ram Khelawan Rai 7 A.L.J. 330 : 32 A. 383 : 5 Ind. Cas. 557. To accede to the appellant's request would be equivalent to enforcing an agreement part of the consideration of which was unlawful. Under Section 24 of the Contract Act, the whole contract must be considered to be void. As the appellant was not entitled to claim a decree for money except on failure on the part of the first respondent to per...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.853
Chamier, J.1. This was a suit for the recovery of Rs. 249 on the basis of a simple mortgage made on the 19th of August 1835. The mortgagees transferred all their rights under the mortgage to the plaintiffs by an unregistered deed of sale, dated the 2nd of December 1898. The present suit was instituted in August 1910. If by the assignment only a right to proceed against the mortgagors personally passed to the plaintiffs, the suit is admittedly barred by limitation. The question for decision is whether the unregistered deed was sufficient to pass to the plaintiffs the interests of the mortgagees under the deed of August 19th, 1885. If the decision in Subramaniam v. Perumal Reddi 18 M. 454 is correct, this question must be answered in the affirmative, But that decision was disapproved by Bhashyam Ayyangar, J., in the later case of Ramasami Pattar v. Chinnan Asari 24 M. 449 at p. 463 : 11 M.L.J. 132. The remarks of the learned Judge may have been, as contended by the Counsel for the appell...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.1004
Chamier, J.1. The case of the plaintiff, appellant is, that his wife died in 1317 Fasli and he was anxious to marry a second time, that the defendants came to his house and said that all their land was mortgaged and that they had to pay rent to their zemindar, and that if the plaintiff paid them Rs 250, they would marry Musammat Imirti, a daughter of the first defendant, to him in the dola form. The plaintiff agreed to pay the sum demanded. Shortly afterwards, he and his friends went to the defendants' house with clothes and ornaments for the girl, worth Rs. 100, which they made over to the defendants, and the plaintiff paid them Rs. 250, the sum which they had demanded, and he also gave the defendants servants the sum of Rs. 10. The girl was brought to the plaintiff's house, but before the ceremony of marriage could be performed, the defendants carried her off and refused to allow her to be married to the plaintiff or to give up the ornaments and clothes or to return the money which t...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.545
Piggott, J.1. This is a suit for redemption of a mortgage, dated the 19th of October 1870, by one Lachhman in favour of the defendant-appellant, Dhanuk Singh. The plaintiffs are transferees of the heirs of Lachhman. The dead in suit purports to be a mortgage of a 5-biswansi share and mutation was applied for by Lachhman and Dhanuk Singh of this share only and orders were issued accordingly by the Revenue Court which heard the application. I must take it, however, as settled by the finding of the lower Appellate Court, that, in consequence of a mere error or oversight by the subordinate officials entrusted with the carrying out of the orders of the mutation Court, the name of Dhanuk Singh was recorded in respect of a 15-biswansi share instead of a 5-biswansi share. The denomination of these shares, i. e., their description in the village papers has since been altered in consequence of a partition of the mahal but for convenience sake, I propose to continue to speak of the share mortgage...
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