GULAB CHAND SHARMA Vs. SARASWATI DEVI

JUDGEMENT

(1.) These two appeals by certificate arise out of two suits, one a suit for redemption of mortagage instituted by the predecessor-in-interest of the first respondent, and the other a suit for injunction filed by the appellant. The relevant facts are these: On Oct. 20, 1936, the Secretary of State for India-in-Council through the Chief Commissioner, Delhi, executed a deed leasing out in perpetuity a Plot of 0.445 acre of land in New Delhi, which later came to be known as 13, Keeling Road, in favour of two persons, Niranjan Das Sason and Hans Raj Senon. The deed provides inter alia that on breach by the lessees or any person claiming through them of any of the covenants of the lease, the lessor or any person duly authorised by him shall have right of re-entry upon the premises and thereupon the lease shall cease and stand determined. The lessees who constructed a one storeyed building on the plot sold their leasehold rights in the land with the building thereon to one Bakshi Mohan Lal Sason on March 21, 1949. Bakshi Mohan Lal Sason transferred the property to the appellant, Gulab Chand Sharma, by way of mortagage by conditional sale for Rs. 70,000/- on May 31, 1956. The mortagagor was given four years time from the date of execution of the mortagage deed to repay the sum. Clause 9 of the terms and conditions of the mortagage set out in the deeds reads as follows:

(2.) On October 23, 1958, the Secretary (Local Self Government), Delhi Administration, issued a notice of re-entry to Bakshi Mohan Lal Sason alleging that he had violated some of the conditions of the perpetual lease. It is not necessary to refer to the terms of the lease breach of which was alleged, nor to enter on a consideration of the questions raised in the course of the hearing of the appeals as to whether the notice of re-entry was subsequently withdrawn or whether waiver of such notice was possible in law so as to keep the lease alive. These are matters outside the scope of the present appeals which turn on the question whether Clause 9 of the mortagage deed is a clog on the mortagagor's equity of redemption.

(3.) Sometime in February, 1959, Bakshi Mohan Lal Sason called upon the appellant to receive payment of the sum Rs. 70,000/- and reconvey the mortagaged property, and the appellant having refused Sason instituted a suit for redemption of the mortagage against the appellant on May 24, 1960, in the court of the Senior Subordinate Judge, Delhi. On July 27, 1960, the appellant filed his written statement in the suit. In the written statement the appellant took up the position that with the notice of re-entry served on Sason, Clause 9 of the mortagage deed became operative with the result that the appellant became the "absolute owner of the property including the lease-hold rights of the plot" and the mortagage did not subsist. Two days after Sason had filed a suit for redemption, the appellant filed a suit for injunction restraining Sason from alienating or dealing in any manner with the leasehold rights in the land and the building thereon. The appellant claimed that in view of Clause 9 of the mortagage deed he had become the absolute owner of the property. The appellant thus asserted the same right as plaintiff in his suit that he had pleaded as his defence in the suit for redemption. These two suits were consolidated and disposed of by the Subordinate Judge by a common judgment on January 30, 1962, holding that the appellant had become the owner of the property in view of condition 9 of the mortagage. The subordinate Judge accordingly dismissed Sason's suit for redemption and decreed the appellant's suit for injunction. Aggrieved by this decision Sason appealed to the Delhi High Court. He died during the pendency of the appeals and was substituted by the first respondent. On August 4, 1972, the High Court allowed the appeals, dismissed the appellant's suit for injunction, and passed a preliminary decree for redemption in respect of the property in dispute.