AI Structured Summary
Not yet generated for this judgment
Judgment
Chapman, J.—The plaintiff in this case alleged that one Dhannu Singh had executed an usufructuary mortgage-bond in her predecessor''s favour in the year 1867 in respect of 12 bighas odd of land in a certain Mouzah named Mandaidih. Dhannu Singh at that time was a share- holder in the two annas putti in that mouzah. Subsequently Dhannu Singh repaid a portion of the money which had been advanced and took back possession of 3 bighas odd out of the land which had been mortgaged; the remaining 9 bighas odd remained in the possession of the plaintiff''s predecessor as a security for the advance of its. 500, the rental being fixed at Rs. 60. Thereafter the interest of Dhannu Singh and certain co-sharers in the property was purchased by one Nandan Lal. Thereafter there was a partition of the estate and these lands, 9 bighas 8 cottahs and 14 dhurs, were allotted to the separate putti of other co-sharers and not to that of any of the persons from whom Nandan Lal purchased.
The plaintiff''s case was that as the land which had been mortgaged to her predecessor had been allotted to another putti, she was entitled to a corresponding area of land in the putti which was allotted to Nandan Lal.
The first Court dismissed the suit but the plaintiff has succeeded in appeal, the learned Subordinate Judge apparently relying upon the case of Byjnath Lall v. Ramoodeen Chowdry, 21 W.R. 233 ; 1 I.A. 106. That was a case, however, in which the owner of an undivided share in a joint estate mortgaged his entire undivided share, and it was held that the mortgagee was entitled to the rights which were subsequently allotted to his mortgagor after a partition. That is not the case here. In the present case a specific land was mortgaged and it is not possible to say which of the lands now in possession of the theirs of Nandan Lal in that partition correspond to the lands which were mortgaged by Dhannu Singh. The only principle upon which the learned Subordinate Judge seems to have proceeded is, that because the lands are specified in the plaint, therefore, those must be the lands selected. I am of opinion that this cannot be supported upon any principle, and that the only decree to which the plaintiff is entitled was a decree for the money due to her from the date of her dispossession to the date of realization with interest at the rate which apparently was agreed upon, namely, 12 per cent, per annum. I would accordingly set aside the judgment and decree of the learned Subordinate Judge and direct that the plaintiff be awarded a decree for Rs. 500 with interest at the rate of 12 per cent, per annum from the date upon which she was dispossessed of the mortgaged property, against the defendants Nos. 1 and 2, the heirs of Nandan Lal. I would make no order as to costs.
The defendants Nos. 7--12 ask for an order for costs'' in their favour. It is clear that in this appeal they were only mentioned as pro forma defendants and consequently I would not grant them any costs.
Roe, J.
I agree.