GIRJA SHANKAR vs JAGANNATH - 1950 Supreme(All) 205

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1950 Supreme(All) 205

MALIK
GIRJA SHANKAR – Appellant
Versus
JAGANNATH – Respondent

Advocates Appeared:
H.D.Srivastava, N.Banerjee

MALIK, CJ.

( 1 ) ONE Ram Nath executed a simple mortgage on 8-11-1930 in favour of Jagannath plaintiff. In the mortgage deed a 1/6th share in certain properties was included. The mortgage was for Rs. 700 and the amount was payable after one year. On the date of the mortgage Ram Nath was, however, owner of only a 1/9th share in the mortgage. In 1932 Ram Kumar, nephew of Ram nath, died and Ram Nath inherited a 1/18th share in the property from Ram Kumar and thus became the owner of a 1/6th share of the property. Thereafter Ram Nath died and on 17-5-1933, the widow of Ram Nath as guardian of her minor sons defendants 1 and 2 executed a mortgage in favour of defendants 3 and 4. The mortgage was of a 1/18th share in the same property. In this mortgage deed no mention was made of the first mortgage. Jagannath, plaintiff, filed a suit on the basis of the mortgage dated 3-11-1930, out of which this appeal has arisen, for sale of the 1/6th share included in his mortgage. Defendants 1 and 2 did not defend the suit, bat defendants 3 and 4 took up the plea that their 1/18 share of the property was not saleable, as Ram Nath was the owner of only a 1/9th share when he executed the mortgage date