HASMUKHLAL RAICHAND Vs. CHANDRAKANT MAHENDRALAL

JUDGEMENT

(1.) The plaintiffs who are the heirs and legal representatives of one Mahendralal Balubhai had filed Special Civil Suit No. 34 of 1973 before the Civil Judge (S. D.) Navsari for redemption and possession of the mortgaged property after taking accounts. It was their contention that by a registered mortgage-deed dated 27-4-61 Survey Nos. 683 684 & 685 in all admeasuring 4 acres 21 gunthas of Navsari were mortgaged by deceased Mahendralal Balubhai for security of Rs. 15 0 taken from the defendant No. 1. In paragraph 3 of the plaint it is their say that at that time defendants Nos. 2 & 3 were in posse ssion of the suit property as tenants; for paying the mortgage debt an arrangement was arrived at between the parties that defendants Nos. 2 & 3 would pay rent directly to the defendant No. 1; that they came to know that the defendant No. 1 had transferred the suit lands to defendants Nos. 2 to 5; as the defendants refused to redeem the mortgaged property after settling the accounts notice was given on 10-4-73 and the suit was filed. It is their contention that the plaintiffs are prepared to pay whatever amount is found due and payable by them to the defendants. 2 Defendant No. 1 had filed written statement Ex. 20 and he has denied the contentions raised by the plaintiffs. It is his say that deceased Mahendralal Balubhai had executed a registered sale-deed on 27 after receiving full market value of the property with a condition that if deceased refunds the amount of Rs. 15 0 within three years then he was to execute a reconveyance deed in favour of the deceased. As the deceased had failed to comply with the said term the plaintiffs are not entitled to have reconveyance deed. He has further contended that by a transferred the suit lands to the defendant No. 6 Narayan Bricks Factory a partnership firm of which defendants Nos.

(2.) to 5 are partners. Defendants Nos. 2 to 5 have filed written statement Ex. 22. It is their contention that they are bona fide purchasers for value without notice and that they were not knowing that the defendant No. 1 was the mortgagee in possession.

(3.) After recording the necessary evidence the learned Judge by the judgment and decree dated 5/05/1978 held that the document Ex. 52 dated 27/04/1961 executed by deceased Mahendralal in favour of defendant No. 1 was a mortgage by conditional sale for a consideration of Rs. 15 0 and plaintiffs are entitled to redeem it after settling the accounts. He negatived the contention of the defendants Nos. 2 to 5 that they were bona fide purchasers for value without notice of the right of the plaintiffs to redeem. With regard to the possession he held that defendants Nos. 2 and 3 were tenants of the suit lands prior to the mortgage and therefore they are entitled to retain the possession. The learned Judge negatived the contention of the plaintiffs that they are entitled to recover physical possession of the suit land from the defendants Nos. 2 to 6 after redemption.