Basdeo Prasad vs Dwarika Pandey

Facts: The plaintiffs brought a suit for redemption of a four annas share of property mortgaged by their ancestor. Defendants 1 to 6 were the mortgagees. Defendants 7 to 31 owned an eight annas share and defendants 32 to 39, a four annas share. At the trial Court defendants 1 to 6 did not appear but put in a written statement that at the partition after which plaintiffs alleged they bad acquired their right to the properties in question, they had not really done so and that they had no title at all to them. The other defendants appeared and bore out this assertion. The Trial Court found that the plaintiffs had no title to the land, and held that they could not therefore redeem. On appeal the District Judge took the view that the question of plaintiffs'' title was irrelevant and revised the judgment. The present, appeal to the High Court was then made.

Dawson Miller, C.J.

[His Lordship set out the facts and proceeded:�] I may point out that this is not a case of the mortgagee-defendants in a mortgage suit disputing the title of their mortgagor. The plaintiffs in this case were not mortgagors. The mortgagor was their ancestor in the year 1861. Their case was that they have succeeded to his property. The defendants'' case was that they have done nothing of the sort, and that by the partition which took place between the members of that family they got nothing in this particular property. That was, in my opinion, a very proper issue to be determined in a mortgage suit of this sort and it is very different from the case of a mortgagee setting up a paramount title as against his admitted mortgagor.

When the case came before the learned District Judge on appeal he took the view that it was not competent to the Court in a suit for redemption to go into the question whether the plaintiffs had or had not an interest in the mortgaged property and as the mortgagee defendants did not appear at the trial, although they had put in a written statement contesting the plaintiffs'' right, be came to the conclusion that the plaintiffs must have judgment against the mortgagee-defendants, that is the defendants 1 to 6, notwithstanding that the Judge of the trial Court had found on the facts before him that the plaintiffs had no interest in the property. He further came to the conclusion that it was not necessary in this suit to decide whether the plaintiffs had or bad not an interest in the mortgaged property. In my opinion in taking that view he was wrong for the reason I have already given. I think therefore that the decision of the learned District Judge cannot stand, that his decree must be set aside and that the case must go back to him again to come to a conclusion on the question of fact about which there is evidence on the record and which was found in favour of the defendants by the trial Court, namely, whether the plaintiffs have any title to the property in suit. That is a question of fact. It has been set out in issue No. 3 and it is in my opinion a vital issue in this case. The costs of this appeal will abide the final results of the suit.

Kulwant Sahay, J.

I agree.