VALDAS Vs. BAI JIVI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned District Judge, Mehasana 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 and the original plaintiffs. One Patel Virchand Madheva had mortgaged the suit house to one Jota 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 Ugai again mortgaged the suit property with the said mortgage Joita Punja for Rs. 400/- wherein it was agreed that the mortgage would be redeemed after 99 years. The present plaintiff are the heirs of Devakaran Jiva, husband of Bai Ugari. They filed the suit for redemption of the mortgage stating that as redemption of the mortgage stating that as they were the debtors under the Bombay Agriculture Debtors Relief Act the debts stood extinguished on account of the failure of the creditor to file an application under this 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 Jota Punja. They. however did not admit that Bai Ugai 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 brother of Patal 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 plaintiff were the debtors within the Bombay Agriculture Debtors Relief Act and their debt was not exceeding Rupees 15,000/- on 31-3-1950. They stated that suit No. 97 of 1960 was filed by Amgalal Kakldas for redemption of their mortgage claming himself to be the heir of Bai Ugari wherein the present plaintiffs at their instance were joined as co-defendants. The suit was however with-drawn by Patel Ambala Kakldas 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 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 pleasing of the parties, the learned trial Judge framed several issues at Ex. 20. He decided issues a 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 plaintiff to file the suit for redemption . He therefore, passed a decree accordingly. Against the said judgment and decree of the learned trial Judge, and 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 suit case. the mortgage was for a period of 99 years. Such a long period for redemption for the mortgage would amount to clog on the equity of redemption. The plaintiffs could therefore ignore this condition and would be competent to file a suit for redemption. He urged that the 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 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.