GOVINDRAM Vs. RAMGOPAL

JUDGEMENT

(1.) This is defendants' second appeal arising out of a suit for redemption instituted by the plaintiff-respondent. The plaintiff's case, in brief, was that Dhnnraj s/o Hceralal and Bhanwarlal s/o Keshrilal, who were related, owned two shops at Bhanpura that they mortgaged these shops by executing a registered deed of mortgage on 27-1-1943 in favour of defendants Nos. 1, 2 and 3 to secure an advance of Rs. 2,000/- and delivered possession of the mortgaged property to the said defendants. It was furthere averred that Bhanwarlal, who was a Jain, died some time in the year 1949 leaving behind him his widow Nanibni and daughter's son Shantilal, defendant No. 4, who was adopted' by Nanibai. It was further averred that Nanibai died some time in the year 1903 and thus, defendant No. 4 Shantilal became the sole surviving legal representative of the property of deceased Bhanwarlal. As regards the other mortgagor Dhanraj, the plaintiff averred that Dhanraj died some time in the year 1951; that his -son Kanmal, before his death, had adopted Mansingh, defendant No. 5, and that Mansingh executed a registered deed of release on 27-1957 in favour of defendant No. 4, Shantilal, surrendering his rights in the mortgaged property. The plaintiff further averred that Shantilal, defendant No. 4, sold the equity of redemption to the plaintiff by a registered deed of sale dated 18-3-1966 and as defendants Nos. 1 to 3 failed to redeem the mortgaged property despite repeated demands in that behalf, the plaintiff brought the present suit for redemption. The suit was resisted by the defendants-appellants inter alia on the ground that the adoption of Shantilal was not valid and that he could not, therefore, convey the equity of redemption to the plaintiff. The trial Court upheld this contention and dismissed the plaintiff's suit. On appeal, the lower appellate Court held that the adoption of Shantilal was valid and that the plaintiff had, therefore, acquired the right to redeem the suit property. The lower appellate Court further held that the defendant-appellants were, however, entitled to recover expenses amounting to Rupees 1.200/- from the plaintiff. In this view of the matter, the lower appellate Court allowed the appeal and setting aside the judgment and decree passed by the trial Court, decreed the plaintiff's suit directing that the plaintiff was entitled to re-deem the mortgaged property from the! defendants after making payment of the amount due under the mortgage along with a sum of Rs. 1.200/-. Aggrieved by the judgment and decree passed by the lower appellate Court, the defendants have preferred this appeal. The plaintiff-respondents have also filed cross-object ions partly aggrieved by the judgment and decree passed by the lower appellate court.

(2.) Shri Waghmare, learned counsel for the appellants, contended that the lower appellate Court erred in law in holding that the adoption of Shantilal was valid. If was contended that as Shantilal had not acquired any right to redeem the property in question he could not convey that right to the plaintiff. In reply, Shri Sanghi, learned counsel for the plaintiff-respondent, contended that from the evidence on record, it was clearly established that Shantilal was validly adopted son of deceased Bhanwarlal and that even assuming that the adoption of Shantilal was not valid, Shantilal being the only heir of deceased Bhanwarlal and Shantilal having acquired the rights of Mansingh in the suit property as a result of deed of release executed by Mansingh, Shantilal alone was entitled to convey the right to redeem the property in question to the plaintiff and the lower appellate Court was, therefore, justified in decreeing the plaintiff's suit. It was further coil-tended that the lower appellate Court had erred in law in directing the plaintiff to pay the amount of Rs. 531-83 on account of repairs to the mortgaged property.

(3.) In view of the contentions urged before me the first question that arises for consideration is whether Shantilal's adoption was valid. Learned counsel for the parties conceded that as the approach by the lower appellate Court in this behalf was not proper, inasmuch as it held that giving and taking of a boy was not necessary for a valid adoption amongst Jains, it was a fit case where this court should appreciate the evidence on record to ascertain whether there was in fact a' valid adoption of Shantilal.