DHULCHAND CHATURBHUJ Vs. DHARANIDHAR KHEMKARAN

JUDGEMENT

(1.) THIS second appeal arises out of a suit for redemption of a house situated in the town of Manasa. Plaintiff's case is that his father Khemkaran had effected usufructuary mortgage of the disputed house for a consideration of Rs. 1,670 under a registered deed of mortgage dated 3 -9 -1931; that subsequent to mortgage his father died and that he alone is entitled to succeed to his rights as mortgagor. A notice, according to him, had been given to the defendants -mortgagees on 1 -4 -1949 asking them to permit redemption of the house on receipt of the mortgage amount but they failed to comply. The plaintiff' therefore prays for a decree for redemption on payment of the appropriate mortgage amount to which the defendants are legally entitled.

(2.) THE defendants stated in answer to the plaintiff's claim that they have not found any document with them incorporating a usufructuary mortgage as alleged by the plaintiff. In case the plaintiff' succeeds in providing any such document the same is not legal and valid. The tender of mortgage money is denied and it is further asserted that the defendants have been in possession of the suit house as owners of over 12 years and had spent large amount of money for its reconstruction and repairs and had mortgaged the same with third parties. They also stated that they had been told by their father, who was the actual mortgagee, that the house had been purchased by him. In their special pleadings they asserted that if the plaintiff succeeds in establishing the existence of mortgage then under a subsequent transaction dated Chaitra of Samvat Year 1994 mortgagor Khemkaranji had got his right of redemption extinguished after receiving Rs. 11 -4 -0 as Municipal Tax in respect of the earlier period and that thereafter the defendants have been in possession as full owners of the property. With these pleadings the parties went to trial.

(3.) ON appeal the learned District Judge confirmed the decree and dismissed the appeal. This is a mortgagees' second appeal. In order to appreciate the exact contentions that are raised before me it would be material to state certain facts.