SATISH CHANDRA BODHAK Vs. NABANI KUMAR BODHAK

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff and it arises out of a suit for redemption of a mortgage. Rajen and Suren were two brothers. The plaintiff No.1 is the son of Rajen and the plaintiff No.2 is his widow. During the life-time Rajen mortgaged all his properties including his share in the dwelling house to his brother Suren by a registered deed of mortgage dated Agrahayan 27, 1337 B.S. corresponding to December 13, 1930, as security for repayment of a loan of Rs.100 with interest as stipulated. There is a stipulation in the mortgage deed that if by the end of Chaitra 1343 B.S. the mortgagor fails to reply the debt together with interest, the deed of mortgage will be treated as a deed of sale and the mortgagee will get the disputed properties absolutely. The case of the plaintiffs is that Rajen died about ten years after the mortgage deed was executed and that at the time of his death the plaintiff No.1 was only five years of age. It has been alleged by the plaintiffs that their uncle Suren used to look after the mortgage property on behalf of the plaintiffs after the death of Rajen. Subsequently, their uncle Suren gave out that the mortgage deed had been satisfied out of the usufruct of the mortgage properties, but the mortgage deed remained with Suren as the plaintiff No.1 was a minor at that time and as the mortgage was his guardian. In the revisional settlement record of rights the defendants Nos.1 to 3, who were heirs of the mortgagee, had been trying to record their names in respect of their mortgage properties by virtue of the said stipulation in the deed of mortgage. On the aforesaid allegations the plaintiffs instituted the suit for redemption.

(2.) The defendant No.1 alone appeared in the suit and contested the same by filing a written statement. The defendant No.1 relied on the said stipulation in the mortgage deed. Further, it was alleged that the mortgagor having failed to repay the debt within the stipulated time, he surrendered his right of redemption and delivered possession of the mortgage properties to the mortgagee Suren on Baisakh 1, 1345 B.S., who took khas possession of the same as a purchaser and, thereafter spent money for the improvement of the mortgage properties by digging a tank in exercise of the right under the said stipulation in the mortgage deed. It was alleged that Suren took possession of all the properties as a purchaser except that the mortgagor was allowed to stay in the dwelling house as the licensee of his brother Suren.

(3.) The learned Munsif came to the findings that there was practically no proof to show that there was any bargain between the mortgagor and the mortgagee did not take possession of the mortgage properties as a purchaser, but he took possession of the same as mortgagee. Further, he held that the stipulation in the mortgage deed was a clog on the equity of redemption and, as such, it was void. He took the view that the Court could not give effect to any such clog or fetter the right of redemption of the mortgagor. Upon the said findings the learned Munsif decreed the plaintiff's suit in preliminary form. The defendants were directed to render accounts in the manner stated in the decree.