Decided on April 11,1950

S. Bhopinder Singh And Others Appellant
Chanan Singh And Others Respondents


Harnam Singh, J. - (1.) SHORTLY stated the facts which give rise to this appeal are that on the 26th of July 1992, Sardar Avtar Singh, father of Bhopindar Singh and Balvindar Singh, defendants, mortgaged without possession for Rs. 15,609/ - 94 kanals 9 marlas of agricultural land, situate in Mauza Dhaliwal, Tehsil Nakodar with Chanan Singh and Nand Singh plaintiffs 1 and 2 and Bawa Singh, father of Kultar Singh plaintiff 3. The conditions of the mortgage provided, inter alia that in case the mortgagor failed to pay interest on the mortgage -debt for one year the mortgagees would be entitled to possession of the mortgaged land. Default having occurred in the payment of interest, the plaintiffs instituted the suit for possession of the mortgaged land against Bhopindar Singh and Balvindar Singh defendants. Sardar Avtar Singh mortgagor having died before the institution of the suit.
(2.) NOW , defendants 1 and 2 denied the execution of the mortgage deed by Sardar Avtar Singh and then pleaded that in any case, the land in suit was ancestral qua them and the mortgage was without consideration and legal necessity. In the replication the plaintiffs maintained that the pleas regarding the ancestral nature of the land and consideration and necessity were not open to the defendants in these proceedings.
(3.) UPON the pleadings of the parties the following issues were framed: 1. Did Avtar Singh deceased execute the mortgage deed in favour of the plaintiffs and if so whether for consideration? 2. Are plaintiffs entitled to possession of land in default of payment of interest? 3. Has default in payment of interest been made? 3. IS land in suit ancestral qua defendants? 4. IS mortgage in favour of plaintiffs for consideration and legal necessity? Cannot the defendants raise the pleas covered by issues Nos. 4 and 5? 5. IS objection of defendants barred by time? 6. BELIEF ? After a protracted trial the trial Court found that the execution and the registration of the mortgage deed Ex. P. 4., was proved and that the plaintiffs were entitled to possession in default of payment of interest. The trial Court then found that default in payment of interest had been made. On issue No. 4 the trial Court found that the land in suit was ancestral qua the defendants. On issue No. 5 the finding of the trial Court was that the mortgage in question was not supported by consideration and legal necessity. Finding that the objections covered by issues Nos. 4 and 5, were open to the defendants and that those objections were not barred by time, the trial Court dismissed the suit with costs.;

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