GUR PRASAD Vs. HABIB HASAN

JUDGEMENT

(1.) This is the defendant's second appeal against the appellate decree of Mr. Shiam Manohar Tewari, Civil Judge, Faizabad, dated 12-4-1945.

(2.) It appears that one Haji Sheikh Fazal executed a mortgage on 21-3-1912 for Rs. 500 in respect of a kachcha house in favour of one Jawahar Lal. The two plaintiffs are the sons of the mortgagor and the defendant. Gur Prasad, is the son of the mortgagee. Under the terms of the mortgage, the mortgagee was allowed to remain in possession of the house in lieu of interest on Rs. 250 and aa regards the remaining sum of Rs. 250 it was provided that interest thereon shall be chargeable at 2 per cent. per month oom-poundable annually. It was also provided that the mortgagee would have the right to repair the property and recover the money from the mortgagor. It was also provided that the mortgagee could, if he thought it necessary, rebuild the house and whatever expenditure was incurred by him it would be recoverable from the mortgagor at 12 per cent. per annum simple. It was said that the debt would be payable after 53 years. It was also provided that in case the mortgage money with interest were not paid, the mortgagee would be at liberty to obtain a decree for foreclosure from Court and take the property for himself. The present suit was filed by the plaintiffs under Section 7, Debt Redemption Act for redemption of the mortgage. They stated that their father was an agriculturist at the time of the mortgage in 1912 and they too were agriculturists at the date of suit. They stated that under the provisions of the Debt Redemption Act they were liable to pay interest only at 4 1/2 per cent. and that from the usufruct of the property the entire mortgage money, inclusive of interest, had been satisfied in full.

(3.) The defendant contested the suit on various grounds. One of the defence was that neither the plaintiffs nor their father were agriculturists within the meaning of the Debt Redemption Act. Another defence raised was that Rs. 500 had been spent on repairs and Rs. 5994 had been spent on the constructions. It was also said that the suit was premature.