CH SAMBAIAH Vs. MARUPAKA PARIJATHAM

JUDGEMENT

(1.) The appellant is one of the sons of the sole defendant in a suit for redemption of mortgage.

(2.) The material averments in the plaint are as follows : The plaintiffs who are brothers are the joint owners of a tiled house bearing Municipal No. 1545 (old) and 9/432 new as it is their ancestral property. They mortgaged the said house in favour of the defendant by means of a registered mortgage deed dated 27-03-1948 for a sum of Rs. 1,500.00O.S. and delivered possession of the same. The conditions in the mortgage deed are that the amount lent should carry interest at 9 per cent per annum, that the mortgage should be released within ten years from the date of mortgage and in case of default it would be treated as sale and that the rents received by the mortgagee would be first appropriated towards the interest and the balance would be appropriated towards the principal amount The defendant has been in possession of the said house since 27-3-1948. He filed O.S.No.101/1 of 1358-F in the Sub-Court, Warangal, for delivery of possession and the same was dismissed. On 26-4-1968, the plaintiffs issued a notice for redemption. However, as a copy of the mortgage deed was not with them, the conditions laid down in the mortgage were not mentioned in it. The plaintiffs 1 and 2 having migrated to different places seeking their livelihood, but the third plaintiff who was in Government service was not residing in Warangal. The plaintiffs have met the defendant for accounts and to deliver the possession if the total amount of mortgage was cleared on account of appropriation of the rents towards interest and principal. In view of the rents received by the defendant, the plaintiffs need not pay anything to the defendant for redemption. As such they are demanding the defendant for accounts. In spite of a clause if the mortgage is not redeemed within ten years it may be turned into sale, the same being a clog on mortgage is not enforceable in law as the limitation for redemption of mortgage is thirty years.

(3.) The averments in the written statement are as follows : Even though the mortgage deed mentions interest at 9 per cent, the understanding was to pay at 13 per cent per annum. Inspite of the dismissal of the earlier suit, the fact remains that the suit house was in a dilapidated condition. The plaintiffs are having only 0-6-0 share in the mortgaged properly and the remaining 0-10-0 share" would be of the defendant. The portion purchased by the defendant is bigger and in good condition. The plaintiffs who are badly in need of money persuaded the defendant to lend Rs,1500/- on the security of truncated portion of the house by way of usufrucuary mortgage. The defendant could not use the house for himself nor let out for others. When the defendant demanded the plaintiffs several times to pay the interest which was accumulated to Rs. 1800.00 and the expenses for repairs and charges amount to Rs.5,396-43 paise, the plaintiffs gave a notice dated 26-04-1968 offering to pay Rs. 1500.00and asking for redemption for which a detailed reply was given on 20-06-1968 demanding a sum of Rs.8696-43 paise in case the plaintiffs have right to redeem the property. The plaintiffs after finding that the liability was more than the property even according to the increased market value as prevailing at that time agreed to relinquish their right of redemption in consideration of full adjustment of debt account. However, formal release deed could not be executed due to unavoidable circumstances. On the faith of the said agreement and the bonafide belief that he is the owner of the property, he renovated the suit house at a cost of Rs. 15,000.00 and after improvement and sufficient increase of value, the plaintiffs have filed the suit with dishonest intention after a period of six years from the date of last notice. The plaintiffs cannot redeem the property unless and until they pay the amounts due to the defendant totalling to Rs. 27,746-43 paise being the principal, interest, repairs and Municipal taxes paid for over eighteen and half years.