HAJI ISUFALI ABDULLABHAI JINIA Vs. FIJABHAI FAKHRUDDIN CHALLAWALA

JUDGEMENT

(1.) Heard learned Advocate Mr. R. N. Shah for appellants and learned Advocate Mr. Suresh M. Shah For respondents. In present appeal, respondent Nos. 6, 7/1 and 7/4 have been deleted from array of Second Appeal by appellants. Facts relevant to question are to the effect that shop bearing City Survey No. 4317 situated in Mullaji Bazar, Dahod was under ownership of father of plaintiff. This property is more particularly described in paragraph 1 of plaint. This being disputed property, hence, hereinafter referred to as "suit property" for sake of brevity. By registered deed dated 4-2-1975, father of plaintiff had gifted said property to plaintiffs brother Shri Nuruddin Yusufali and by registered gift deed dated 5-6-1975, plaintiff's brother Shri Nuruddin gifted said property to present plaintiff, therefore, plaintiff has become owner of suit property. It is submitted by plaintiff that plaintiff's father had executed a mortgage deed in favour of defendants who were tenants of suit property. Registered mortgage deed was executed on 3-2-1967. No interest was to be paid and period for redeeming mortgage was fixed lor eight years from date of the execution of mortgage deed dated 3-2-1967. It is the case of plaintiff that period for redemption was over on 3-2-1975 and plaintiff is willing to redeem mortgaged property but defendants are not willing to redeem the same, therefore, plaintiff was constrained to file suit against defendants for redemption of mortgaged property (suit property).

(2.) Said suit was contested by defendant Nos. 1, 3, 4 and 5 before trial Court by tiling their written statement at Exh. 10 denying facts of plaintiff that plaintiff has become owner of suit property by virtue of gift deed dated 5-6-1975. The contention raised by defendants that under Mohammedan Law, gift deeds dated 4-2-1975 and 5-6-1975 are not valid in law and on basis of these deeds, plaintiff has no right to file a suit for redemption of mortgaged suit property. In fact, ground floor of house property bearing City Survey No. 4317 was let out to defendants firm by father of plaintiff on monthly rent of Rs. 20/- with effect from year 1956. Thereafter, father of plaintiff filed R.C.S. No. 28 of 1966 against defendants in Civil Court at Dahod for recovery of possession of suit property wherein compromise was arrived at between father of plaintiff and defendants and as per terms of compromise, defendants had handed over first floor of house property bearing City Survey No. 4317 to deceased Isufali and they were continued in possession of ground floor as tenants. Thereafter, father of plaintiff was in need of money, therefore, he had mortgaged ground floor of suit property in favour of defendants and recovered amount of Rs. 7,000/- as mortgage money from them. Defendants made it clear that they are willing to release mortgaged property but they are not willing to hand over possession of mortgaged property to plaintiff. It is submitted by defendants that after releasing mortgage property, they are willing to continue as tenants of ground floor of suit property on monthly rent of Rs. 20/- per month and they are also willing to execute a rent note in favour of plaintiff. Defendants being a tenant, taking same on mortgage from his landlord does not itself extinguish right of tenancy and effect of such mortgage on the tenant's right is merely that they are kept in abeyance and when landlord redeems the mortgage, parties revert to their former position and landlord is not entitled to get actual possession of mortgaged property, and therefore, ultimately, defendants prayed to dismiss suit of plaintiff with costs.

(3.) Defendant Nos. 2 and 6 were served but they had not appeared before trial Court, and therefore, ex-parte order was passed against them by trial Court below Exh. 1 on 29-4-1981. Trial Court has framed issues at Exh. 37.