MATHURABAI Vs. SHRIPAT

JUDGEMENT

(1.) THIS revision petition raises for decision the question of the valuation for purposes of jurisdiction in a suit for redemption. The non -applicant Shripat instituted a suit in the Court of Civil Judge First Class Bhind for the redemption of a mortgaged -property alleging that on 20th July 1922 he mortgaged with possession the property with Ajudhya Prasad for Rs. 8,000/ -; that the mortgage was for a period of three years; that the mortgage amount did not carry any interest and the mortgagee was given the right to appropriate the entire rent of property in lieu of interest. The plaintiff claimed to redeem the property from the legal representatives of Ajudhya Prasad on payment of Rs. 8,000/ -. He also claimed Rs. 2,000/ - on account of damage done to the property by the mortgagee in possession. The principal defendant Mathurabai has admitted the mortgage. Her defence inter alia is that on 20th July 1922 itself the plaintiff took on rent the mortgage property agreeing to pay Rs. 60/ - per month as rent and thus the mortgagee did not obtain possession of the property and that the plaintiff is not entitled to redeem the property without paying the amount of rent due, namely. Rs. 40606/ - as also the amounts spent by the mortgagee on the repairs to and preservation of the mortgaged property. She also raised the Objection that the valuation of the plaintiff's suit being in excess of Rs. 10,000/ - the learned Civil Judge had no jurisdiction to try it. The trial Judge relying on Sir Mohammad Akbar Khan vs. Mt. Motai and others ( : AIR 1948 P.C. 36) and Jaswant Ram and others vs. Moti Ram and others ( : AIR 1926 Lah 376) held that the value for purpose of jurisdiction in a redemption suit depended on the amount found due to the mortgagee and not on the value stated in the plaint or on the amount claimed by the defendant in the plaint or on the amount claimed by the defendant as the price redemption. He further held that the amount due to the mortgagee was less than Rs. 10,000 and as such the suit was triable by him. The defendant Mathurabai has now filed this revision -petition.

(2.) MR . Bhagwandas Gupta learned counsel for the applicant urged that in a redemption suit the value for purposes of jurisdiction would be the amount claimed by the mortgagee. This contention cannot clearly be accepted in view of the decision of the Privy Council in : AIR 1948 P.C. 36. In that case the Privy Council observed: - -

(3.) These observations make it plain that in a suit for redemption of an [immovable property the value for the purpose of jurisdiction is the amount found, by the Court, due on the mortgage to the mortgagee and not the amount alleged by the plaintiff to be due to the mortgagee or the amount claimed by the mortgagee as due to him. It must be remembered that the amount due on the mortgage may not necessarily be the principal amount and interest thereon secured by the mortgage. Where the mortgagor has not paid any amount to the mortgagee towards the principal or interest, then of course the principal amount and interest secured by the mortgage would represent the amount due on the mortgage and would be the value of the suit for purposes of jurisdiction. But where the mortgagor has made any such payments the amount due on the mortgage would be the amount secured by the mortgage less the payments made by the mortgagor. It must also be noted that the amount due on the mortgage is not the same thing as the value of the equity of redemption which as pointed out by the Privy Council is altogether irrelevant in the determination of the value of the suit for purposes of jurisdiction. Thus any amount claimed by the mortgagee on account of repairs to the mortgaged property on account of moneys spent by him for the preservation of the property cannot be included in the value for purposes of jurisdiction. In this case the learned Civil Judge found the amount due on the mortgage as less than Rs. 10,000. He held that under the mortgage no interest was payable to the mortgagee, that no rent by way of interest was even payable to the mortgagee, that the amount due on the mortgage was Rs. 8,000, and that even if the amount of Rs. 957/11/6 claimed by the applicant on account of repairs to the mortgaged property is added to the mortgaged amount, the suit would still be of a valuation of less than Rs. 10000 and that the other amounts claimed by the defendants as spent by them for the preservation of the property did not in any way affect the valuation for purposes of jurisdiction. Before me learned counsel for the applicant did not say anything against these findings. It is, therefore, not necessary for me to express, in this revision petition any opinion on the correctness or otherwise of these findings. Learned counsel, however, generally argued that the trial Judge should have held a fuller inquiry and fixed the exact amount due to the applicant before adjudicating on the valuation for purposes of jurisdiction and that the lower court gave no finding as to the amount due to the mortgagee on account of repairs to and preservation of the property. In my opinion as the valuation depends on the amount due on the mortgage, and as observed by the Privy Council, the value of the equity of redemption is irrelevant, the question of fixing the amount due to the mortgagee on account of repairs and preservation of the property does not arise while adjudicating on the question of the valuation of the suit for purposes of jurisdiction.