JAINARAYAN RAMKISAN Vs. MOTIRAM GANGARAM

JUDGEMENT

(1.) THE question which we have to decide is whether a lahan gahan mortgage is a mortgage by conditional sale within the meaning of Section 177, Berar Land Revenue Code.

(2.) THE plaintiff-respondent brought his suit as a co-occupant of a field in mauza Madhapuri in Murtizapur taluq of the Akola district to preempt in respect of a part of the survey number against the co-occupant Ramsingh who had mortgaged it to defendant 1 Jainarayan and the latter who had obtained a final decree for foreclosure in his suit. The defence taken did not include any plea challenging the plaintiff's right to pre-empt and the suit was decided merely on the question of fair consideration. The plaintiff obtained a decree and in first appeal in the Court of the first Additional District Judge, Akola, Jainarayan, the contesting defendant, raised the question of the plaintiff's right to sue for pre-emption for the first time on the argument that no right accrued to him as the final decree for foreclosure was not obtained on the basis of "a mortgage by conditional sale but on the basis of a lahan-gahan mortgage. The appellant was allowed to advance this argument but it was rejected and the same contention was raised before Bose J. in second appeal.

(3.) WE may also state at once that we do not consider it necessary to discuss the arguments for and against whether a lahan gahan mortgage is one falling within the ambit of Section 58(c), T.P. Act and we are content to assume for the purposes of this judgment that the mortgage in question the pertinent part of which runs Till the satisfaction of this amount I mortgaged with you the immovable property owned by me. Fox the above amount I have executed in your favour the mortgage of the immovable property as stated. Should I fail to pay off your amount according to stipulation, the above mortgaged immovable property stands foreclosed (lahan gahan). is, so far as the definition in the Transfer of Property Act is concerned, an anomalous mortgage.