Patna High Court
Sapneswar Pati And Ors. vs Brundaban Panda And Ors. on 4 January, 1934
Equivalent citations: 148IND. CAS.429, AIR 1934 PATNA 397
JUDGMENT Fazl Ali, J.
1. This appeal arises out of a suit for the redemption of a mortgage executed by one Narsingh Panda in favour of the predecessor-in-interest of the appellants by which he gave in usufructuary mortgage 1 anna odd share of his gauntia rights along with certain bhogra, and raiyati lands. With regard to the raiyati lands there was a stipulation in the mortgage deed that they would remain m the possession of the mortgagee and would not be restored to the mortgagor on the redemption of the mortgage. Subsequently Varsingh Panda sold his gauntia right in the tillage to the plaintiff and the plaintiff thereupon brought the suit for redemption. The suit has been contested by defendants Nos. 1, 3 to 6, 8 and 10 who have been recorded as raiyats in Respect of the raiyati lands which were included in the mortgage and their plea is that the plaintiff is not entitled to redeem the raiyati lands on two grounds:(1) by reason of the stipulation in the mortgage about the raiyati lands; and (2) because the mortgagor did not transfer his interest in the raiyati lands by the sale deed executed by him in favour of the plaintiff.
2. Both the Courts below have held that the stipulation in the mortgage to the effect that the raiyati lands will always remain with the mortgagee is a clog on the equity of redemption and I am not inclined to differ from that view. It is urged by Mr. Chatterji that what is to be considered in this case is that the mortgagor was a gauntia and could create a raiyati interest in others in certain lands. But the fact to be remembered is that in this particular case the lands in dispute were already the raiyati lands of the mortgagor and any stipulation providing that upon the redemption of the mortgage those raiyati lands would not comeback to the mortgagor was clearly a clog on the equity of redemption.
3. With regard to the second point it appears that in the very deed by which the mortgagor sold his gauntia interest to the plaintiff it was provided that he was entitled to redeem the raiyati lands also. The lower Appellate Court also has stated in its judgment that the only person who is now entitled to the equity of redemption in the property not transferred is defendant No. 11 the widow of the original mortgagor and she has filed her written statement in the case in which she states that the plaintiff is entitled to redeem the mortgage and to get possession of the bhogra and raiyati lands also. In my opinion neither of the two grounds urged in support of the appeal can be upheld.
4. The last ground that was urged was that the lower Appellate Court should not have disallowed the costs to the appellants which had been allowed by the Court of first instance. The lower Appellate Court disallowed the costs on the ground that the pleas put forward by the appellants were not good. The fact however remains that the appellants were merely calling upon the plaintiff to give effect to a stipulation in the mortgage deed itself and the settlement entries were in their favour. Besides it is pointed out that the plaintiff did not offer the full mortgage money to the de fend ant s before bringing the suit. In any opinion there was no good ground for d sallowing the costs to the defendants and therefore in this respect the decree of the lower Appellate Court will be set aside and. the decree of the first Court will be restored. In other respects the appeal is dismissed. There will be no costs so far as this appeal is concerned.