Muhammad Niamat Ali Khan vs Ghaffar Muhammad Khan and Others

Banerji and Aikman, JJ.—The plaintiff-appellant brought the suit, which has given rise to this appeal, for sale upon a mortgage, dated the 1st of November 1890, made in his favour by the first defendant Ghaffar Muhammad Khan. The second defendant Maulvi Nazir Hasan purchased a part of the mortgaged property, which he sold to the third defendant, his wife. The other defendants are purchasers of different other portions of the mortgaged property. The third defendant opposed the claim, among other grounds, upon the plea that she had discharged some mortgages which were prior in date to the mortgage of the plaintiff, and that the plaintiff was not entitled to a decree for the sale of the property purchased by her without paying to her the amount which she had paid in discharge of the prior mortgages, or a proportionate share thereof. The Court below has totally dismissed the suit on the single ground that the plaintiff had not offered in his plaint to redeem the prior mortgages which the third defendant had discharged, and in support of this opinion the learned Subordinate Judge has referred to the ruling of this Court in Salig Ram v. Har Charan Lal ILR (1890) All. 548. We cannot agree with the learned Subordinate Judge that that case is not distinguishable from the present case. That was a case in which the purchasers were themselves prior mortgagees, the consideration for their purchase being the amount of the prior mortgage. That case, in our opinion, cannot be regarded as a basis upon which every suit for sale, in which the plaintiff impleads as defendant a subsequent purchaser, but owing to ignorance or some similar cause does not mention in his plaint the fact of the purchaser having discharged a prior mortgage, should be dismissed. In the judgment in Kali Charan v. Ahmad Shah Khan ILR (1894) All. 48, the learned Judges who decided that case observed: "We are unable to lay down as a rule of universal application the principle that a plaintiff who claims too much or fails to admit reasonable deductions from his claim is therefore to be deprived of that to which he is legally entitled." With that observation we concur. This case more nearly resembles the case to which we have just referred, and which should have been followed by the lower Court. As we have said above, the third defendant or her husband from whom she purchased a portion of the mortgaged property was not a prior mortgagee of that property; it is only by reason of her having paid off a prior mortgage that she can use that mortgage as a shield against the plaintiff''s claim to the extent of the amount paid by her. The fact that the plaintiff made no mention in his plaint of the alleged payment, was not, in our opinion, a valid reason for totally dismissing the suit. The amendment which the plaintiff asked for should have been granted, and the suit decided on the merits and a proper decree passed. We allow the appeal, and, setting aside the decree of the Court below, remand the case to that Court u/s 562 of the Code of Civil Procedure, with directions to readmit it under its original number in the register and decide it on the merits. The appellant will get his costs of this appeal; other costs heretofore incurred will abide the event.