KHATUBAI NATHU SUMRA Vs. RAJGO MULJI NANJI

JUDGEMENT

(1.) THE appellant is the original plaintiff who filed a suit against the original defendant for redemption of mortgage of a property mortgaged by one Aishabai, grandmother of the plaintiff to the father of original defendant No. 1 Jusab Sidik Gulmohmed who, it appears, was the son -in -law of the said Aishabai. Original defendant No. 2 having died, his heirs are brought on record as respondents Nos. 1 to 10, the said defendant was impleaded as he was the assignee of the rights obtained by the said Jusab Sidik, original defendant No. 1's father from Aishabai. It may be noted at this stage that the suit was withdrawn against defendant No. 1 and it then proceeded against defendant No. 1 only.

(2.) THE plaintiff's case was that the property consisting of a room, with Osri and Angna, that is, chowk or verandah and open space, which property was self contained, the same being Deli Bandh, was mortgaged for a consideration of Rs. 2,000 Koris on Aso Vad 3 of S.Y. 1998 equivalent to 1942 A.D. The property was formerly mortgaged to Khatri Jamat and the possession was obtained by redeeming the same from it through court. By the suit deed of mortgage Ex. 45, it was provided that the property was mortgaged with possession for a period of 99 years with condition that there will be no interest on the security amount of 2000 Koris (Rs. 667) and there will be no rent for the property given in possession to the mortgagee. The document further provided that the mortgagee was at liberty to spend for repairs and to incur incidental expenses on the property as also to demolish the property and to reconstruct from the foundation with upper floor, and at the time of redemption, the mortgagor will be bound to pay along with mortgage amount the said expenses so incurred by the mortgagee for repairs and reconstruction of the property. It was also mentioned that out of the said amount of 2000 Koris advanced on mortgage, an amount of 1900 Koris was received by the mortgagor for the purpose of meeting with household expenses. It was, therefore, the plaintiff's case that these terms in the mortgage were such as to amount to a clog on equity of redemption and they therefore, had no binding effect on her and she was, therefore entitled to redeem the mortgage before, expiry of the stipulated period of 99 years. The original mortgagee's (Sidik Gulmohmed) son Jusab, that is original defendant No. 1 sold the rights in the property obtained by the said document to defendant No. 2 on 3 -12 -1966 as per Ex. 56 for a sum of Rs. 1,700 and it was inter alia mentioned in that document that for repairs and new construction after demolishing the old one, an amount of Rs. 1,100 had been spent on the property.

(3.) AGGRIEVED by this judgement and decree of the trial court, original defendant No. 2 -Rajgor Mulji Nanji preferred regular Civil Appeal No. 77 of 1971 to the court of the District Judge, Kutch at Bhuj and the learned District Judge who heard the same, came to the conclusion, on construing the terms in the said document, Ex. 45, that it did not contain any terms which would amount to a clog on the equity of redemption. In his opinion, there was nothing on record to warrant a conclusion that the mortgagor had been in a position to dominate the will of Aishabai or undue influence had been exercised or that the transaction was unconscionable. He, therefore, allowed the appeal, set aside the decree passed by the trial court and dismissed the suit of the plaintiff with costs, and hence this second appeal by the original plaintiff.