- (1.) THIS is a plaintiff's appeal arising out of a suit for refund of money paid by him in lieu of assignment of mortgagee rights in his favour by the defendant Jinraj and others. It may be stated, here, that Jinraj has died during the pendency of this appeal and his sons other than Jabarchand, who was already on the record as defendant-respondent No. 2, have been impleaded as legal representatives. The house in respect of which the mortgagee rights were assigned by Jinraj and others admittedly belonged to Bhika, who mortgaged the same with Jinraj and his son Jabar Chand for Rs. 350/-by a registered mortgage deed dated 7-8-42. On 4-1-50 Bhika executed a gift deed in respect of this house in favour of his wife Smt. Ratni, who in her turn sold it on 10-12-55 to Tulchha and others. THIS sale deed was attested by Jinraj and the documents in respect of this house, which were in possession of Jinraj, were also handed over by him to Mst. Ratni. Only five days after the execution of this sale deed, the vendees Tulchha and others withdrew their claim to the house in question by executing a deed of cancellation of the sale. On the same day, that is, on 16-12-55, Jinraj and his son assigned the mortgagee rights and a money decree dated 1-5-51 for Rs. 851/-obtained by Jinraj and others against Khuma Kalal,in favour of Khnma for Rs. 1,000/ -. The assignment deed has been placed on the record and marked Ex. 3.
(2.) IT may now be relevant to turn to another set of facts pertaining to the insolvency of Bhika, the owner of the house. Bhika had admittedly run into heavy debts and he applied for being declared an insolvent. His application was accepted and on 25 6-55 Bhika was adjudged an insolvent. The house in question had been attached by one of his creditors, viz. , Mishrimal, in execution of the decree obtained by him. Consequently a claim was filed by Khuma before the insolvency court in respect of this house alleging that he was its mortgagee by virtue of assignment of the mortgagee rights in his favour by Jinraj and others. Khuma's claim was, however, dismissed by the insolvency court by its order dated 16-11-57, a copy of which has been placed on the record and marked Ex. 1. Khuma went in appeal, but his appeal was dismissed by this Court (S. B. Civil Misc. Appeal No. 12 of 1958 Khuma vs. Mishri Mal decided on 10-3-58 ). Copy of this order is marked Ex. 2. Thus having lost his claim in respect of the house in question in the insolvency proceedings right up to the High Court, Khuma instituted the present suit in the Court of the Munsif, Sojat, for return of Rs. 1,000/-paid by him to Jinraj and others in lieu of assignment of the mortgagee rights in his favour and certain other incidental charges such as registration fee, and other expenses incurred by him. The total claim is for Rs. 1,600/ -. The defendants denied the plaintiff's claim. After recording the evidence produced by the parties, the trial court dismissed Khuma's suit and its judgment and decree were upheld in appeal by the Civil Judge, Sojat. Hence this second appeal by Khuma. , It has been argued by the learned counsel for the appellant that the consideration for the assignment deed having failed, the plaintiff Khuma should have been granted a decree for return of the amount ofrs. 1,000/- along with other items of expenses incurred by him in this connection. It is submitted that the judgment of the insolvency court dated 16-11-57 upheld by the High Court, became final by virtue of sec. 4 of the Provincial Insolvency Act and the finding in the insolvency proceedings that there was no subsisting mortgage on 16-12-55 when the mortgagee rights were assigned by Jinraj and others in favour of Khuma has become final. It has been argued that Jainraj has admitted having received Rs. 1,000/- from the plaintiff at the time of execution of the assignment deed and, therefore, the assignors are entitled to get back the amount. On the other hand, learned counsel for the respondents has contended that the whole transaction of assignment of the mortgagee rights was sham and colour-able and that as a matter of fact Khuma was in know of the actual state of affairs and consequently he cannot take advantage of the findings of the Insolvency Court. Besides, he has also contended that the subject matter of assignment was not onlv assignment of mortgagee rights, but also of money decree for Rs. 851/- and the plaintiff has failed to allege muchless prove that the assignors had no interest in the decree ether and since the consideration of the assignment deed is not severable, there cannot be proportionate refund. In my opinion, the last point urged by the learned counsel for the respondents is more formidable and the appeal can be disposed of on this point alone. There is no denying the fact that by the assignment deed Jinraj and others assigned not only the mortgagee rights in respect of the house in question, but also a money decree of Rs. 851/-obtained by them against Khuma. There is not a word in the plaint that the assignors had no interest in the decree or that the plaintiff's claim in respect of the amount due under the decree had also been negatived by the insolvency court. The plaintiff's evidence is conspicuously silent on this point altogether, with the result, that even what has been stated by the plaintiff in the plaint as well as in his evidence, is accepted, it only leads to the conclusion that the assignors had no subsisting interest as mortgagee in the property in question on the date of assignment. But what about the decree assigned by them in favour of the plaintiff ? The utmost, therefore, that can be said in favour of the plaintiff is that out of the two properties assigned to the plaintiff, the assignors had no interest in one. If that be so, even then the question arises is the consideration of the assignment, viz. , Rs. 1,000/- severable ? If it is not, there can not be proportionate refund. This proposition seems to be well established. Reference in this connection may be made to Bapu Rawther vs. State of Kerala (l) Nagalinga Chhettiar vs. Guru-swami Ayyar (2) and Firm Narasingi Vanechand vs. Narasayya (3 ). It has been held in Bapu Rawthar vs. State of Kerala (l) that where there is no total failure of consideration and the defaulter being found to have no title in one of them then unless the consideration is severable, the purchaser would not be entitled to proportionate refund of money. No contrary authority on the point has been brought to my notice by the learned counsel for the appellant. The finding on this point by itself is thus sufficient to non-suit the plaintiff. In this view of the matter I do not consider it necessary to address myself to the other aspect of the case, viz. , whether the plaintiff was aware of the whole nature of the transaction commencing from the execution of the sale deed by Mst. Ratni on 10-12-55, in favour of Tulchha and others, persons no other than the nephews of the plaintiff himself and as such he cannot take advantage of his own fraud. The it suit is that I do not find any force in this appeal and hereby dismmiss it. In the circumstances of the case I leave the parties to bear their own costs. .;