RAMLAL BHAGIRATHJI Vs. MAHANT ATMARAMJI GURU KALYANDASJI (DECEASED) THROUGH L.R. RAMBILAS GURU MAHANT ATMARAMJI

JUDGEMENT

(1.) THIS petition for revision arises out of Plaintiff's suit for recovery of arrears of rent. The Defendant, who was the original owner of the house in suit had executed a mortgage of this house and had executed a rent -note in favour of Mahant Atmaram agreeing to pay rent to him for continuing to occupy the said house subsequent to the date of the mortgage. The rent -note was for a period of one year and had been executed on 15 -10 -1952. The Defendant however had paid rent for one year in advance and the rent -note appears to have been extended to enable the Plaintiff, if he so desired, to obtain ejectment from the Defendant. The rent -note contained a specific stipulation that in case the Defendant did not vacate at the end of the year for which the rent had already been paid in advance, the landlord would be entitled to obtain ejectment by having recourse to a suit for the costs of which he would be liable. The mortgage deed mentioned the fact that the mortgagor had obtained Rs.4,000 for securing which the Defendant had executed the usufructuary C.R. No. 371 of 1958 decided on 7 -4 -1959. (Indore Bench.) J mortgage deed and had executed a rent -note for one year. One year's rent had been paid in advance which was credited towrads interest of one year. The house would be redeemed at the end of the year. In case this were not done the house should be deemed to have been sold to the mortgagee. It is clear that the last mentioned term was a clog on the mortgage and was invalid. The mortgage appeared to be of anomalous sort and the rent -note was intended by the parties with a view to convert the occupation of the Defendant as an owner into that of a tenant.

(2.) THE Plaintiff claims to be the heir of Mahant Atmaram the person named as the landland in the rent -note and entitled to recover arrears of rent as Mahant Atmaram was dead. It was asserted by the Plaintiff that subsequent to the death of Mahant Atmaram the Defendant paid Rs.300 through Indarmal Kataria. He was given credit for the rent of Rs.50 said to have been paid in excess to Mahant Atmaram. The Plaintiff claimed Rs.200 as rent due from 15 -6 -1956 upto 14 -2 -1957 at Rs.25 P.M.

(3.) THE amount of interest to which he might be liable would be determined at the time of redemption.