Decided on April 08,1954

Ramcharan Tulsiram and Ors. Appellant
Murlidhar Ramchandra Respondents

Referred Judgements :-



Newaskar, J. - (1.)(sic) a reference made by Dixit J. this matter (sic) been placed before the Full Bench.
(2.)THE brief facts which have given rise to this re -(sic) as will appear from the order of reference (sic) follows: On 14 -6 -1952 two persons Mura -(sic) Bhagavanta mortgaged with possessors (sic) number of fields situated in the Zamindari (sic) Wareh with one Tundesingh for a consideration of Rs. 54/ - under a registered deed of mortgage. The property was liable to be redeemed on repayment of mortgage money. Thereafter the same mortgagors effected two several mortgages in respect of some other pieces of land situated in the same village for Rs. 51/ - and 384 respectively on 1 -3 -1927. Both these latter mortgages were also with possession. Similar terms consisting inter alia of a condition for redemption on repayment of the mortgage amount were also incorporated in the documents, entered into between the parties in respect of these mortgages.
Tundesingh died and is succeeded by his newphews Ramacharan, Babu and Badri sons of Tulsiram. Muralidhar alleged that he approached these newphews of mortgagee Tundesingh several times to get the mortgaged property redeemed but evaded. This according to him would put him to an annual loss of Rs. 40/ -. He therefore filed a suit for redemption of all these properties covered by the aforesaid three mortgages on payment of Rs. 486/ -. He further prayed for mesne profits at the rate of Rs. 40/ - per annum. He impleaded in this suit co -mortgagor Bhagavanta as a party Defendant as he refused to join as Plaintiff.

Defendant No. 1 Ramacharan filed a separate written statement, wherein he practically admitted the creation of all the three mortgages except as regards the number of one field which he erroneously believed to be 1/4 when in fact it was described in the plaint as 21/4. He denied that Plaintiff ever offered to redeem these mortgages and tendered the mortgage amount. He further pleaded that there were further advances amounting to Rs. 500/ - and a charge in respect of this amount rests upon the mortgaged properties. Defendant No. 4 Bhagavanta is said to have borrowed a sum of Rs. 57/ - as the Manager of the family of the Plaintiff. Plaintiff's right to sue as the sole Plaintiff is denied and lastly it is claimed in the alternative that only on payment of (Rs. 486 plus 500 plus 57) 1043 redemption could be permitted.

(3.)DEFENCE raised on behalf of the other Defendants was evasive. They denied all knowledge about the transaction and their liability in respect of the Plaintiff's claim.

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