FULCHAND RAKHABDAS MAHAJAN Vs. KANHAIYA LAL DALURAM

JUDGEMENT

(1.) THIS is a second appeal by the defendant -mortgagee from the concurrent decisions of the lower Courts decreeing the redemption suit by the legal representatives of the original mortgagor. The sheet anchor of the defendant -mortgagee's ease was that in 1938, seven years after the mortgage in 1931, the mortgage entered into an independent transaction dehorns the mortgage, by which he surrendered to the mortgagee the equity of redemption for no fresh payment, but in consideration of his not bringing a suit for the mortgage principal and the costs of repairs. This has been disbelieved as a fact and further, the lower Courts have held that even assuming for the sake of argument that there was an agreement or transaction of the kind pleaded by the defendant, it could not be proved in the absence of a formal registered instrument conveying the equity of redemption. The points for consideration, therefore, are, whether on the facts the story set up by the defendant should have been believed, and whether the findings of fact could be permitted to be challenged in second appeal; secondly, whether the documents produced by the defendant, assuming them to be genuine to really support the conveyance of the equity of redemption to the mortgagees and amount to an independent transaction outside the mortgage; and thirdly, whether in the event of these documents being genuine and having the effect of conveying the equity of redemption to the mortgagee, they are sufficient to prove it in a Law Court in the absence of a formal registered deed. Stated thus, the questions are simple and a negative decision on the first question would naturally conclude the controversy against the defendant -appellant. However, the case has been argued at considerable length, elaborately with great ability and citation of a quantity of case -law.

(2.) THE broad facts are common ground, except for the alleged surrender of relinquishment of the equity of redemption by the mortgagor in favour of the mortgagee and the genuineness of two petitions said to have been filed by the mortgagor. The predecessor. in -interest of the plaintiff -respondent Daluram, father of plaintiffs 1 and 2 and the husband of plaintiff No. 3, created a mortgage with possession by a registered deed (Ex. D/9) dated 5 -9 -1931 on a house, the identity and the extent of which are not in dispute. The consideration was Rs. 1,771 and among other incidents we have - The coat of repairs in excess of Rs. 3 per annum shall be added on to the principal and be payable as such by me. that is to Bay, the mortgagor would not be liable personally to anything by way of cost of repairs; I shall repay the principal and redeem the mortgage within seven years...but if

(3.) THE process by which this is said to be done has been called "a mutation proceeding" but it is common ground that no formal procedure was indicated in the law or the rules, and no such procedure was adopted. As years passed, in 1943 the mortgagee applied to the municipality for permission to reconstruct or repair the structure and actually obtained it. It is not clear what work he actually did; but certainly at about the same time, he also obtained the so called certified copies from the municipality of two petitions he alleged had been given by the mortgagor to the municipality in 1938 itself. The existence of such petitions is controversial, but the fagot is that in 1943, the mortgagee was trying to obtain documents to strengthen his claim to be fall owner of the house. In 1944, the original mortgagee, Daluram died, not having taken any steps for the redemption of the property; but about four years later his heirs sought to redeem it by notice and tender of the principal. Now the mortgagee asserted that the property had become exclusively his in 1938 itself by the surrender of the equity of redemption to him by the mortgagor. This led to the present litigation. Besides resisting the redemption, the mortgagee claimed a considerable amount of the cost of repairs. Actually, a portion of it -about Rs. 800 in round figures -has been awarded by the lower Courts and there is no controversy about it raised by either party in this Court.