PATEL CHATURBHAI VALDAS Vs. HIRABHAI JOITARAM

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned District Judge Mehsana allowing regular Civil Appeal No. 5 of 1965 and setting aside the judgment and decree passed by the learned Civil Judge Junior Division Visnagar in Civil Suit No. 52 of 1962.

(2.) The appellants in the instant case are the original plaintiffs. One Patel Virchand Madheva had mortgaged the suit house to one Joita Punja for Rs. 130/on Posh Sud 9 of Samvat year 1962. On the death of Virchand his daughter Bai Ugari inherited the properties of Virchand. On 15-9-1916 Bai Ugari again mortgaged the suit property with the said mortgagee Joita Punja for Rs. 400/wherein it was agreed that the mortgage would be redeemed after 99 years. The present plaintiffs are the heirs of Devkaran Jiva husband of Bai Ugari. They filed the suit for redemption of the mortgage stating that as they were the debtors under the Bombay Agricultural Debtors Relief Act the debts stood extinguished on account of the failure of the creditor to file an application under the said Act for adjustment of the debt. They therefore prayed for possession of the suit property from the defendants. The defendants filed written statement at Ex. 14. They admitted that they were the heirs and legal representatives of Patel Joita Punja. They however did not admit that Bai Ugari was the wife of Devkaran Jiva and that Valji Jiva the father of plaintiffs Nos. 1 2 3 and 4 and Sangha Jiva father of defendant No. 5 were the brothers of Patel Devkaran Jiva. They denied that the condition in the mortgage deed fixing the period of 99 years for redemption was a clog on the equity of redemption. They denied that the plaintiffs were the debtors within the Bombay Agriculture Debtors Relief Act and their debt was not exceeding Rs. 15000/on 31-3-1950. They stated that suit No. 97 of 1960 was filed by Ambalal Kakaldas for redemption of their mortgage claiming himself to be the heir of Bai Ugari wherein the present plaintiffs at their instance were joined as co-defendants. The suit was however withdrawn by Patel Ambalal Kakaldas with permission to institute a fresh suit on the same subject matter and that therefore the present suit was not maintainable as the present plaintiffs had not obtained the permission to institute the fresh suit on the same subject matter. On the pleadings of the parties the learned trial Judge framed several issues at Ex. 20. He decided issues Nos. 1 2 3 and 5 in the affirmative and issues Nos. 4 6 and 7 in the negative. He held that the debt was not extinguished. According to him the suit was not premature and that it was open to the plaintiffs to file the suit for redemption. He therefore passed a decree accordingly. Against the said judgment and decree of the learned trial Judge an appeal was preferred in the District Court Mehsana and the learned District Judge set aside the judgment and decree of the trial court and dismissed the suit. Against the said judgment and decree of the learned District Judge the original plaintiffs have preferred the present appeal to this court.

(3.) Mr. M. B. Shah learned Advocate for the appellants submitted that in the instant case the mortgage was for a period of 99 years. Such a long period for redemption of the mortgage would amount to clog on the equity of redemption. The plaintiff could therefore ignore this condition and would be competent to file a suit for redemption. He urged that there was provision in the mortgage document permitting the mortgagee to make construction and therefore if the mortgagee made some construction on the mortgaged property it would be beyond the means of mortgagor to redeem the same and therefore such a condition also would amount to a clog on the equity of redemption. Lastly Mr. Shah urged that as the mortgagee had denied the title of the mortgagor in the suit property and had denied the existence of the mortgage deeds it was open to the mortgagor to file a suit for redemption prior to the expiration of the period mentioned in the mortgage deed. He therefore urged that the learned District Judge was clearly in error in dismissing the suit on the ground that it was premature.