MADHO SINGH Vs. PANCHAM SINGH

JUDGEMENT

(1.) We have got two appeals before us, viz., No. 660 of 1924 and No. 957 of 1924 and also a cross-objection in the former appeal. The cross-objection is easily disposed of. For, there is a deficiency in Court-fee, and the learned Counsel, Dr. Katju, has declined to take time to make good the deficiency. The cross-objection went to the Toot of the suit and prayed that the suit should be dismissed. Evidently, therefore, the Court-fee had to be paid either on the valuation of the suit or at least on the value of the property sought to be exempted. In any case there is a deficiency and as Dr. Katju does not want any time to make good the deficiency, the cross-objection in Appeal No. 660 of 1924 must fail and is hereby dismissed with costs.

(2.) Both the appeals arise out of the same suit and the claim is briefly this: Mt. Sahodra, who is described in the plaint as the Defendant No. 1, executed two mortgages, one in favour of Ranjit Singh, on the 9 May 1904 and the other in favour of Kunwar Madho Singh, the appellant, in both the appeals, on the 12 of May 1915. The second mortgage is in suit. Madho Singh claimed recovery of Rs. 2,000, principal amount, and Rs. 3,000 as interest, by sale of, three properties out of four mortgaged to him. He sought to exempt one of the properties mortgaged, viz., that in village Meerpur, from the suit. The plaintiff made parties to his suit, besides the mortgagor, several persons. The Defendants Nos. 2 to 4 represent one Ram Chandra about whom we shall hear much. They and others were made parties as subsequent transferees.

(3.) The suit was contested by the Defendants Nos. 2 to 4 alone and they said that they were, although in form, subsequent transferees, but, practically, they were prior mortgagees. Their defence was based on the following facts: Ranjit Singh brought a suit for sale on his mortgage of 1904 in 1916 and made, besides Mt. Sahodra, Madho Singh a party to the suit. A decree for sale was obtained and the properties mortgaged were put to sale. One of the properties, viz., Nagla Chamaran, was sold for a sum of Rs. 20,000 on the 20 of February 1919. Mt, Sahodra, however, did not allow the sale to be confirmed. She managed to raise some money and to pay off the decretal amount, plus the penalty and the fees payable for the sale. She raised the money. This was on the 16 of March 1919. She sold the village of Nagla Chamaran to Ram Chandra for a sum of Rs. 30,000. On the same day she mortgaged her share in village Nagla Nai Taharpur in favour of Ram Chandra and raised a sum of Rs. 4,000. To be more accurate, the sale was executed by Mt. Sahodra and other co-sharers of the village Nagla Chamaran. It should also be mentioned that the mortgage of 1904 had been executed not only by Mt. Sahodra, but also by some of her co-sharers. This fact, however, will not be very material later on. The contention of Ram Chandra's successors was that his money went to satisfy the earlier mortgage of 1904. To the extent his money went to satisfy the mortgage, his successors were entitled to claim priority over the second mortgage, held by Kunwar Madho Singh. The Defendants Nos. 2 to 4 had also contended that Madho Singh's suit was not at all maintainable being the suit of a second mortgagee, who was a party to the suit on the first mortgagee. This contention was repelled in the Courts below and was repeated in the cross- objection which we have dismissed for non-payment of Court-fees. We are, therefore, no longer concerned with this argument.