NARAIN SINGH Vs. SHIMBHOO SINGH

JUDGEMENT

(1.) IN this case the plaintiffs, as sons and heirs of Pohoop Singh, a mortgagee, seek to recover possession of 20 biswas of the zemindari right of mauza Lallpoor. The defendants in the suit are the representatives of the mortgagor. The plaintiffs state that they claim to establish their right as mortgagees in virtue of their title as heirs of their defunct father, Pohoop Singh, "in that, under a mortgage-deed, dated Phagoon Badi 7th Sumbat 1896, Pohoop Singh, the ancestor of the plaintiff's, having obtained a decree from the Sudder Ameen's Court, was put in possession on the 31st August, 1846." Most of the defendants admit the claim, but the defendants Man Singh, Shimbhoo, Girdharee, and Motee, put in an answer, by the second paragraph of which they admitted that under the former decree the plaintiffs' ancestor was in possession for upwards of a year; but they set up in the fourth paragraph of the same written statement, that "the mortgage alleged by the plaintiffs is wholly unfounded. The defendants' ancestor did not receive the mortgage-money from the ancestor of the plaintiffs; and Pohoop Singh, the ancestor of the plaintiffs, was a person notorious for his expertness in court affairs. He had with a view to deprive Asaram and Sheo Lall of their mortgage-money, obtained by deception a decree on the mortgage-deed in suit, and the defendants' father had, according to the Shasters, no right to transfer and waste the defendants' ancestral property without any legal necessity to satisfy illegal demands. Hence, under the Shasters also, the mortgage alleged by the plaintiffs is invalid, and the claim is unjust."

(2.) NOW , having admitted that the plaintiffs did obtain possession by virtue of a decree, and that he remained in possession for a year, the defendants also, in the same written statement, alleged that the mortgage was collusive and a benami transaction. But although the written statement must be taken altogether, it does not necessarily follow that the whole of the defendants' statement is to be taken as proved in their favour, if they offer no evidence whatever in respect of the allegation that the mortgage was a fraudulent transaction.

(3.) IT appears that the plaintiffs' ancestor did get possession under that document, and it appears to their Lordships that the decree obtained upon that document gave the plaintiffs, as mortgagees, a title to the land as against the defendants, but it gave them no title as against the prior mortgagees, Asaram and Sheo Lall. When Asaram and Sheo Lall turned the plaintiffs' ancestor out of possession, it did not destroy his title and right to the land. It may have given him a right of action as against the mortgagors for having mortgaged to him when they had previously mortgaged to Asaram and Sheo Lall, but it did not destroy the right which the plaintiffs obtained against the defendants by virtue of the mortgage and of the judgment which they had obtained upon it.