SARDAR GOVINDRAO MAHADIK Vs. DEVI SAHAI

JUDGEMENT

(1.) WHAT constitutes part performance within the meaning of the expression in S. 53-A of the Transfer of Property Act ('Act' for short) so as to clothe a mortgagee in possession with the title of ownership which would defeat the suit of die erstwhile mortgagor for redemption, is the question canvassed in these two appeals by common certificate.

(2.) FACTS first. Sardar Govindrao Mahadik original plaintiff I (now deceased prosecuting These appeals through his legal representatives) and Gyarsilal original plaintiff 2 (appellant 2) filed Civil Suit No. 14/51 in the Court of the District Judge, Indore, for redemption of a mortgage in respect of house No. 41 more particularly described in plaint paragraph 1, dated Feb. 22, 1951. A loan of Rs. 10,000.00 was secured by the mortgage. The mortgage was mortgage with possession. Plaintiff 1 was the mortgagor and the sole defendant Devi Sahai was the mortgages. Plaintiff 2 is a purchaser of the mortgaged Property from plaintiff I under a registered sale deed Ex. P-1, dated Oct 14, 1950. Plaintiff 1 will be referred to as mortgagor, defendant Devi Sahai as a. mortgagee and plaintiff 2 Gyarsilal as subsequent purchaser in this judgment. Even though the mortgage was mortgage with possession, it was not a usufructuory mortgage but an anomalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12 Per Cent and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of Rs. 515.00 per annum. Mortgagor served notice dated Oct. S. 1945. calling upon The mortgagee to render true and full account of the mortgage transaction. The mortgagee failed to comply with the notice. Subsequently it appears that there were sonic negotiations between the mortgagor and the mortgagee which according to the mortgagee, culminated In a sale of the mortgaged property in favour of mortgagee for Rs. 50,000.00. Account of the mortgage transaction was made and the consideration of Rs. 50,000.00 for the sale of the house which would mean sale of equity of redemption was worked out as under: <FRM>JUDGEMENT_237_1_1982Html1.htm</FRM>

(3.) DEFENDANT-mortgagee Devi Sahai preferred Civil First Appeal No. 14/66 to the Indore Bench of the Madhya Pradesh High Court. When this appeal was pending, appellant Motilal in cognate Civil Appeal No. 1145/69 applied under O. 22, R. 10, Code of Civil Procedure , for being joined as a party to the appeal claiming that under the sale certificate dated Mar. 25, 1953, issued by the Additional City Civil Judge First Class, Indore, he had purchased the equity of redemption in respect of the mortgaged property and that he has a subsisting interest in the property involved in the dispute and, therefore, he would contest the rights of the plaintiffs as well as of the mortgagee-defendant to claim any right, title or interest in the property. In his application Motilal alleged that he had filed Civil Suit No. 243/ 47 dated Nov. 3, 1947 for recovering a certain amount against the 1st plaintiff-mortgagor and had secured attachment before judgment of the mortgaged property on Nov. 6, 1947. His suit was decreed to the extent of Rs. 2,500.00 by the trial Court. He filed execution application No. 216/51 and in this proceeding the mortgaged property was sold subject to mortgage and he purchased the same for Rs. 300.00 The auctionsale was confirmed on Sept. 25, 1953. It may also be mentioned that the mortgagor-1st plaintiff had preferred appeal against the decree of the trial Court and the appellate Court by its judgment dated 27/03/1953, allowed the appeal and dismissed the suit of Motilal in entirety. Against the appellate decree Motilal filed Second Appeal No. 78/53 in the High Court and by its judgment dated Sept. 4, 1958, Motilal's claim to the tune of Re. 500/- against the 1st plaintiff-mortgagor along with proportionate interest and costs was decreed. The application of Motilal for being impleaded as a party was contested by the let and the 2nd plaintiffs as well as by the defendant-mortgagee. The High Court allowed the application of Motilal for being joined as party to the appeal and examined the contentions advanced on his behalf on merits.