(1.) THIS appeal arises out of a suit for redemption in respect of a house situated in Mal Ganj, Indore City. The appeal is by the Defendant -mortgagee and is directed against the decision of the Additional District Judge, Indore, whereby he substantially affirmed the judgment and decree of the Additional Munsiff City Indore allowing the Plaintiff Laxminarain's claim for redemption of the house. The trial Court had allowed the Plaintiff to redeem the property on payment of Rs. 600/ - with interest, but the lower appellate Court modified this direction by ordering an account to be taken of the amount due under the mortgage and further directing the Plaintiff to redeem the property on payment of the amount so found due.
(2.) THE material facts of the suit out of which this appeal arises are that the Plaintiff Laxmi -this appeal arises and the Respondent Hiralal are real brothers. It was alleged by the Plaintiff that on 28 -11 -1928, he and Hiralal jointly purchased the house in suit from one Ganeshram by a registered sale deed Ex. P -l; that on 1 -12 -1928 they mortgaged the house for a sum of Rs. 600/ - with the Appellant Ghasiram and jointly executed mortgage - deed Ex. P -2 and gave possession of the house to the Appellant; that subsequently on 3 -12 -1928 the Plaintiff and his brother Hiralal took the house on rent from the mortgagee Ghasiram and executed jointly a Kirayanama Ex. P -3. It was further stated by the Plaintiff that some years after Hiralal sold the house to Ghasiram without the consent and knowledge of the Plaintiff and that Ghasiram also executed an agreement of resale of the house in favour of Hiralal but that Ghasiram did not resell the house to Hiralal, and instead started proceedings for ejectment against Hiralal alleging himself to be the owner of the house.
(3.) IT is common ground that the house in suit purchased jointly by Laxminarain and Hiralal from one Ganeshram; that they executed the mortgage -deed Ex. P -2 in favour of Ganeshram and the subsequent rent note Ex. P -3 in favour. Both (he Courts below have found, the finding is not now disputed, that Lax -Boarain and Hiralal were members of joint family. It is also net in dispute that the sale Ex. D -l was executed by Hiralal alone in Court of the Appellant Ghasiram. As redemption is not required by law of he proved by a registered deed to that effect and as it is not necessary that redemption should be in a particular the question for determination is whether sale of 23 -12 -1933 by Hiralal of the mortgage entry to Ghasiram has the effect of extending the mortgage and the Plaintiff's right to tile property. The answer to the question tends, in my opinion, solely on the fact where Hiralal was the manager and also on the which has not at all been appreciated by Courts below, whether the house in suit was family property. There can be no doubt if the sale effected by Hiralal is binding on maintain then the entire mortgage -debt must held to be extinguished and the Plaintiff's suit redemption must be dismissed.