LATE KAMLABAI Vs. RAJESH KALAL

JUDGEMENT

(1.) THIS is defendants' second appeal against the concurrent judgment and decree passed by the Ilnd Additional district Judge, Neemuch in regular Civil appeal No. 34-A/2001.

(2.) THIS appeal was admitted for final hearing on 8-7-2003 on the following substantial questions of law :-

(3.) IN order to appreciate the controversy involved in the appeal, it is necessary to state relevant facts briefly. Plaintiffs are the widow and son of Jeetmal, whereas the original defendant Kamlabai was sister of Jeetmal as both of them were offspring of Laxman and Kashibai. Laxman's mother was jadavbai. It is not in dispute that Jeetmal went in adoption to Rakhabdas who happened to be his maternal grandfather. Plaintiffs came out with the case that Jadavbai by a registered gift deed dated 21-9-1949 had gifted the suit house to Jeetmal. The suit house is more particularly described in paragraph 2 of the plaint, situated in village Jawad. Jeetmal was in need of money, therefore, he had mortgaged the suit house in lieu of Rs. 4. 000/- in favour of Mohanlal. Said Mohanlal had inducted Kamlabai as a tenant on payment of monthly rent of Rs. 30/- in the suit house. It is further alleged in the plaint that Kamlabai was in arrears of rent, therefore, Mohanlal filed an eviction suit and obtained a decree against Kamlabai. When the decree was put into execution, kamlabai approached Jeetmal to borrow money to ward off the decree suffered by her. Jeetmal instead of lending money, advised her to pay off the decretal sum to mohanlal and she should step into the shoes of Mohanlal as mortgagee. Accordingly, kamlabai paid off Mohanlal and she stepped into the shoes of Mohanlal as mortgagee. Plaintiffs, therefore, filed suit for redemption of mortgage against Kamlabai, out of which, this appeal arises.