Accordingly, at the request and entreaty of me, the executant, the said Mahanthji took pity at my companydition and agreed to my request and got ready to get usufructuary mortgage deed executed.
29,496, i.e., on the entire companysideration excluding that amount which was advanced by the thikadars to the executant 3 the manner of discharging the debt was prescribed in the document, namely, that during the subsistence of the thikadari interest, the other party would receive the rent from the thikadars and appropriate Rs.
The plaintiff respondents preferred an appeal against that decree to the High Court at Patna.
per month was agreed to be paid on the sum of Rs.
4246 for the purpose of discharging a debt of Rs.
26,839 7 0 within six months from the date of the decree.
With the result, the executant received Rs.
188 of 1945 arising out of the judgment and decree dated December 18, 1945, of the Court of the Additional Subordinate Judge, IV Class, Gaya, in Title Suit No.
1,769 12 0 on account of interest on the peshgi money bearing interest and pay the 1092 remaining sum of Rs.
The document divided the transaction into two parts.
The first part dealt with the terms governing the parties during the subsistence of the thikadari interest the second part mentioned the terms binding on the parties after the expiry of the said interest.
435 4 0 as rent to the executant 4 on the expiry of 15 years period or after the extended period, the executant would pay the entire principal amount to the other party 5 8 annas share in the mauza was specifically given as security for the amount payable by the executant.
During the first period, the other party would receive the annual rent of Rs.
Appeal from the judgment and decree dated December 12, 1950, of the Patna High Court in Appeal from Original Decree No.
It is number necessary to particularize other defences as numberhing turns upon them in the appeal.
1,769 12 0 on account of interest and pay a sum of Rs.
435 4 0 as rent to the executant and that after the expiry of the thikadari interest, the other party would take physical possession of the land and appropriate the produce towards interest and pay only a sum of Rs.
The appellant pleaded, inter alia, that the suit for redemption was number maintainable as the document was number a mortgage but lease, that on the assumption that it was a mortgage it would only be an anomalous mortgage in respect where of there was numberstatutory liability to render accounts to the plaintiff, that even if it was a usufructuary mortgage, it was governed by the provisions of s. 77 of the Transfer of Property Act taking the mortgage out of the purview of s. 76 d and g of the said Act.
435 4 0 as reserved rent to the executant.
CIVIL APPELATE JURISDICTION Civil Appeal No.
The executant, in express terms, undertook number to put forward any sort of claim or demand in respect of the increase in the produce except and save to get rent as fixed in the document.
The second defendant against whom the decree was passed preferred the above appeal.
31,701 under the document, out of which Rs.
Purshottam Tricumdas and S. P. Varma, for the appellant.
4 of 1945.
435 4 0 as rent.
2,205 the peshgi money due to the thikadars by the executant, against the annual thikadari rent.
29,496 bore interest at i per cent.
per month and Rs.
After the expiry of the thikadari interest in 1338 Fasli, the other party would take actual possession by setting off Rs.
31,701 payable by him to the Mahanth.
2,205 from the thikadars, set off Rs.
From the aforesaid summary of the recitals in the document, the following facts emerge 1 The executant owed large sums of money to the other party 2 interest at i per cent.
1, p. 102 .
The previous deeds were dis charged and endorsements to that effect made on the back of the documents.
239 of 1954.
The Judgment of the Court was delivered by SUBBA RAO J. This appeal by certificate tinder Art.
1 4, 8 10, 13 and 14.
If the debt was number discharged within 1345 Fasli, it was agreed that till the repayment of the entire peshgi money, the ijara deed with possession would precisely with all stipulations remain in force and intact.
May 23.
After getting possession of the ijara property, the other party would make arrangements for its cultivation and appropriate the produce towards interest, paying the executant only a sum of Rs.
2,205 did number carry interest, presumably because the other party did number actually pay the amount to the executant.
As the other party agreed to discharge the advance paid by the third party to the executant, the right to companylect the rent from him was also agreed to be given as security to the other party.
31,701that Rs.
P. Sinha and R. C. Prasad, for respondents Nos.
Deokinand, the companymon ancestor of plaintiff respondents 1 to 4 and proforma respondents 6 to 12, executed a document dated August 20, 1923, in favour of Mahant Tokhnarain Puri of Nadra, the predecessor ininterest of defendant 1, hypothecating eight annas milkiat share in mauza Lodipur, Mahimabigha, Tauze No.
Therefore, 1, the executant, 1089 have voluntarily let out in ijara with possession the whole and entire 8 annas i. e., half of Mauza Lodipur Mahima Bighafor a peshgi money of Rs.
133 1 a of the Constitution of India is directed against the judgment and decree of the High Court of Judicature at Patna setting aside those of the Subordinate Judge, Gaya, in a suit for redemption of an usufructuary mortgage.
