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1911 DIGILAW 44 (ALL)

Sikishan Singh v. Chunni Lal

1911-01-31

body1911
JUDGMENT Stanley, C.J. and Griffin, J. - This appeal arises out of a suit for redemption of a mortgage made in 1881 by the plaintiffs' predecessor in interest. By the mortgage in suit certain specified plots, aggregating an area of 191 bighas, were mortgaged as security for the loan of Rs. 1,300. The lands were described as the sir holdings of the mortgagor. In the year 1888 the defendant, appellant in this Court, at an auction sale in execution of a simple money decree, purchased the proprietary rights in the property in suit. The plaintiffs in this suit seek to redeem the mortgage of 1881. The courts below have repelled the contention of the defendant appellant that the whole burden of the mortgage debt should be thrown upon the ex-proprietary rights now held by the mortgagor. They hold that the mortgagor's ex-proprietary interest was still liable for a share of the mortgage debt proportionate to the value of the ex-proprietor's rights vested in the mortgagor. The first court held that the plaintiffs should pay one-fourth of the mortgage money in order to redeem the ex-proprietary tenures. The lower appellate court upon appeal by the defendant has in its decree affirmed decision of the court of first instance. 2. The ground taken in appeal to this Court is that after the sale in 1888 of the mortgagor's proprietary rights in the property in suit the burden of the mortgage debt continued upon the rights which still remained to the mortgagor, namely, his ex-proprietary rights in the land formerly held by him in the sir. The contention advanced on behalf of the appellant is that there has been merely a substitution of security. 3. It appears to us that the view taken by the courts below is a correct one. What was mortgaged in the year 1881 was the mortgagor's right as proprietor in the mortgaged property and further his rights to occupy the plots specified in the mortgage as sir holder. In the year 1888, the defendant, appellant to this Court, acquired at auction sale, the proprietary rights of the mortgagor. The defendant appellant has by his own act broken up the integrity of his security. He cannot now be permitted to cast the whole burden of the mortgage debt upon the remainder of his security. In the year 1888, the defendant, appellant to this Court, acquired at auction sale, the proprietary rights of the mortgagor. The defendant appellant has by his own act broken up the integrity of his security. He cannot now be permitted to cast the whole burden of the mortgage debt upon the remainder of his security. The principle of the ruling in Bisheshur Dial v. Ram Sarup (1899) I.L.R., 22 All., 284 is applicable to the present case. It has not been shown to us that the amount assessed by the court below as the proportionate share which the ex-proprietary rights should bear to the mortgage debt is erroneous. We dismiss the appeal with costs.