BIDYARAM KALITA AND OTHERS Vs. BIRDATTA KALITA
HIGH COURT OF GAUHATI
Bidyaram Kalita And Others
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Deka, J. -
(1.) THIS is a second appeal arising from the judgment and decree of the learned Subordinate Judge, L. A. D. reversing the decree in the suit passed by the Munsiff of Gauhati in Title Suit No. 9 of 1947.
(2.) THE plaintiff's case is that their predecessor -in -interest late Birohuram Kalita mortgaged the land in suit by way of usufructuary mortgage to Birdatta Kalita on 11 -6 -1926 for a sum of Rs. 160 only and as twelve years have elapsed since after the date of the mortgage, the mortgage stood automatically redeemed under the Assam Moneylenders Act of 1941 The plaintiffs claim the right of redemption with regard to the land mortgaged by Birohu together with compensation valued at Rs. 200. Defendant 1, Birdatta pleaded that there was no subsisting mortgage and that the mortgage debt had been liquidated long before the present suit was brought. His defence was that Birohu and Menoka were two brothers and the loan was obtained by Birohu as the Karta of the joint family. Menoka was entitled to half of the mortgaged land and he sold his portion of the land to the defendant by a registered deed for cash consideration and subsequent thereto, Hasbiram who was given by his father Birohu one -fourth of his share i.e. one eighth of the mortgaged land by way of gift, sold the same to the defendant l, by a registered sale deed and Birohu himself relinquished his interest in the land in favour of the defendant 1, by an endorsement in the mortgage deed itself on 2nd of Magh 1347 B.S. (corresponding to 15 -1 -1941) in lieu of the unpaid portion of the mortgage debt and the mortgage debt was thus completely liquidated by the transfer of the interest of the share -holders in the land to the mortgagee.
(3.) THE learned Munsiff found the transfer in favour of defendant 1 by Menoka and Hasiram to be valid and decreed the suit for redemption with regard to 3/8th share of the mortgaged land with proportionate cost. The plaintiff appealed against this decree to the Subordinate Judge and the defendant 1 also filed cross -objections. The learned Subordinate Judge held that the transfer by Birohu of his subsisting interest in the land by the endorsement dated 2nd Magh 1347 was quite valid and that it operated to extinguish the mortgage debt completely. He found that the mortgage debt was satisfied in the year 1941 and the Assam Act IV  of 1943 - -(The Assam Moneylenders Act) had no application to the facts and circumstances of the case and accordingly the plaintiffs' suit was directed to be dismissed with costs. The plaintiffs have preferred this appeal against this decree.;
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