ABDUL HAMID Vs. MANILAL

JUDGEMENT

(1.) THIS is appeal by mortgagor against a preliminary decree for sale of the mortgaged property. The respondent Manilal filed a suit on the basis of a mortgage executed by the appellant Abdul Hamid on the 2nd March 1949. The mortgage was a possessory mortgage. The property, a house, was already with tenants on the date of this mortgage. The period for redemption was two years The consideration of this mortgage consisted of Rs. 3000/ - due on an earlier mortgage and Rs. 9000/ - fresh amount advanced. The mortgagee was to remain in possession of the property and in lieu of interest he had to enjoy the whole of usufruct. He would not be accountable for the same. The mortgaged home required repairs and the mortgagor agreed to repair the same and in case he did not do so, the mortgagee would be entitled to repair the same at his own expenses and charge the same with interest at the rate of 1 per cent per annum.

(2.) THE plaintiff -respondent, after the period of redemption of two years, gave a notice to the mortgagor on 7 -3 -1951 (Ex. P./34). The mortgagor Abdul Hamid replied offering to redeem the mortgage on condition that the mortgagee gave vacant possession. On 8 -5 -1955, the mortgagee, therefore, brought a suit in which he claimed Rs. 12,000/ - as sum advanced, Rs. 381.15 as the costs of repairs with interest, totalling in all to Rs. 12381.15.

(3.) THE trial Court held that the appellant was an agriculturist and therefore granted instalments at Rs. 4000/ - per year. It further held that the income from the mortgage property was less than the maximum interest allowed under the Madhya Bharat Interest Act viz., 6 per cent per annum. Therefore, there was no question of the applicability of section 3 of the Act. It was further held that the tender by appellant was a conditional one and as such was not a valid tender. A decree was accordingly passed the defendant has come up in appeal.