RAM CHARAN Vs. BHAGWAN DEI

JUDGEMENT

(1.) THIS is an appeal, which arises out of a suit for redemption. The suit was instituted by Ram charan Lal against Mahadeo Prasad (defendant 1) Hakim Dwarka Prasad (defendant 2), jhan-noo Lal (defendant 3) and Hakim Ram Charan Lal (defendant 4 ). The property in dispute which consists of a house and a shop, belonged to one Sheo Charan, who died sometime before the year 1904 leaving a widow, Janasa, and two sons, Chheda (major) and Mahadeo (minor ). On 1-5-1904, Chheda and Janasa on her own behalf and on behalf of her minor son, Mahadeo, executed a usufructuary mortgage deed with a condition of forclosure hypothecating the property aforesaid to Hakim Dwarka Prasad (Ex. 1 ). The mortgage was for a period of ten years and no redemption was permitted within the said period. The amount borrowed under the mortgage was rs. 300/- carrying interest at Rs. 2/- per cent. per mensem compoimdable annually. The mortgaged property, which was a 'kham' structure, needed repairs. The mortgagee was permitted, under the terms of the mortgage deed, to utilise the usufruct of the property in repairing the house and the shop without any liability to render accounts at the time of redemption, and to reconstruct the same or any portion thereof at a cost of Rs. 200/-, which amount was to be treated as part of the mortgage money and to carry interest at the aforesaid rate. The mortgagee, Hakim dwarka Prasad, obtained possession under the mortgage and reconstructed a portion of the house and the shop, it is alleged, at a cost of Rs. 700/- or Rs. 800/ -. No foreclosure proceedings were ever taken.

(2.) ON 13-12-1904, Hakim Dwarka Prasad sub-mortgaged his mortgagee rights, under the mortgage deed of 1/5/1904, to Gangadin, who is now dead and is represented by his son, jhannoo Lal (defendant 2) (Ex. 2 ). There was a simple money decree against Hakim Dwarka prasad and, in execution thereof, on 27-8-1908, his mortgagee rights under the mortgage deed of 1/5/1904, were sold at an auction-sale and purchased by Pan-cham. On 5/12/1908, Jhannoo Lal instituted a suit on the basis of the mortgage deed dated 13/12/1904 (Ex. 3 ). A preliminary decree for sale of the mortgagee rights was passed in favour of Jhannoo Lal on 31-3-1909, (Ex. 4 ). That decree was made absolute on 17/3/1910 (Ex. 5 ). The decree absolute for sale of mortgagee rights under the mortgage deed of 1/5/1904, was put into exe-cution and the said mortgagee rights were sold and purchased by Jhannoo Lal himself on 3/4/1911. In the sale certificate, which was issued to Jhannoo Lal, the auction-purchaser, instead of the mortgagee rights in the property, i. e. the house and the shop, the property itself was described as the property sold. Jhannoo Lal obtained possession over the property purchased on 25/8/1911 (Ex. D. 2 ).

(3.) ACCORDING to the statement of Jhannoo Lal Hakim Ram Charan the present appellant, was occupying the house and the shop at the time when he obtained possession thereon. After he (Jhannoo Lal) had obtained possession Hakim Ram Charan executed a 'kirayanama' in his favour and then the latter offered to purchase the house and the shop. On 9-9-1912, Jhannoo Lal executed a sale-deed of the house and the shop in favour of Hakim Ram Charan aforesaid. The appellant's case is that full proprietary rights in the house and the shop were transferred under this sale deed, while the contesting respondents, Ram Charan Lal, asserts that only the mortgagee rights were conveyed thereunder.