L. DEVI DASS Vs. MT. DEVKI DEVI

JUDGEMENT

(1.) THIS appeal by Mt. Devki Defendant has been brought against the preliminary decree passed in favour of the Plaintiff on 23 -12 -2005 by the Sub -Judge Ist class, Patiala,, in a redemption suit on payment of Rs. 8,000 -0 -0, Devi Dass Plaintiff has also filed an appeal No. 10 of 2006 claiming that the entire charge on the mortgaged property has been washed off by its income during the period of the mortgage. The Plaintiff's father Ganesh Dass mortgaged on 1 -5 -1951 Bk. his four shops, three of which were situate in Katra Nauhrian and the fourth in Bazar Chowk Qilla Mubark Patiala for Rs. 8,000 -0 -0 to Syed Nazir Husaain son of Syed Imdad Ali of Samana. The property was then bringing to the owner Rs. 245 as rent every year. The interest on the mortgage money was fixed at Rs. 400 per annum to give a yield of 5 per cent per annum, and the other essential conditions of the mortgage were that (a) the mortgagor would not ask for redemption before four years after the expiry of which he would be entitled to get the property back on payment of the mortgage money, (b) the usufruct which was then assessed at Rs. 245 per annum, was to be appropriated towards discharging the liability for interest partially and the balance of Rs. 155 due to the mortgagee on account of interest would be paid separately by the mortgagor annually failing which the mortgagor would pay interest on Rs. 165 also at the rate of 5 per cent, (c) the mortgagee would, after notice to the mortgagor carry out necessary repairs and the amount so spent would also carry interest at the same rate, (d) the mortgagor would get the property redeemed on full payment of the mortgage money and interest etc. after four years but during the continuance of the mortgage the mortgagee would have the rights to change the -tenants and to let out the property on a higher or lower rental and in case of fall in income the mortgagor would make up the deficiency or loss, and if the yield went up his account would be credited with the enhanced amounts so received and (e) if the mortgagor would not pay Rs. 155 with interest during the stipulated period of four years, the property would be deemed to have been sold in lieu of the mortgage money and a sale -deed would be executed by the mortgagor and in that case the objection that the property was in mortgage only would not be heard. The exact words pertaining to this term are "agar mayad muqararme Rs. 155 mai muna fake ada na hoga to yeh kul jaidar zer -i -karya jawega. Phir waqat bai ke hujat rehin ki musmuh na hogi". On 24 -3 -1987 Zakir Husaain nephew and successor -in interest of Nazir Hussain original mortgagee, sold the mortgagee rights in one shop situate in Katra Nauhrian for Rs. 5,500 to Amin Chand who is represented in these proceedings by his adopted son Sham Lal Defendant 2. On 9 -10 -1988 Zakir Hussain further sold his mortgagee rights in the remaining three shops for Rs. 6,000 to Mt. Devki wife of Bashambar Dass alias Balu Ram Defendant 3 Mt. Devki on 26 -6 -1994 mortgaged her mortgagee rights in two shops in Katra Nauhrian for Rs. 5,000 with Nikku Mal Defendant 4. Devi Dass brought this suit for redemption on 4 -1 -2004 and claimed possession of the mortgaged property without payment of any principal or interest as he contended that the income of the property during the years of the mortgage had far exceeded its liability under the mortgage covenant. The Defendants opposed the suit chiefly on the ground that the Plaintiff had lost his right to redeem in view of the foreclosure clause in the deed of mortgage dated 1 -5 -1951 Bk. and stressed in the alternative that the Plaintiff could in no case ask for possession without payment of the mortgage money and interest that had accrued thereon. In this suit, representatives of the original mortgagee and the subsequent transferees have been impleaded as Defendants. The suit has been fought out chiefly on two issues, namely, the right of the Plaintiff to redeem the property and the amount due upon the mortgage. It may be mentioned here that Mt. Devki by her application dated 24 -4 -2004 had also initiated proceedings for foreclosure separately under the Hidayat of 1922 Bk. This application has been tried along with the suit of Devi Dass hut dismissed. In the redemption suit a preliminary decree has been passed in these words:

(2.) MR . Nehra has drawn our attention to the judgment of the trial Court with a view to point out that it fails to conform to the requirements of Order 20 Rule 4, Code of Civil Procedure. The judgment in our view contains sufficient discussion of the points raised in the arguments and pleadings of the parties and they can easily know from the judgment and understand the grounds of the decision. Although the method of approach is not so lucid or elaborate, the various aspects of the case and questions involved have been properly appreciated and determined. At any rate, the learned Counsel has not been able to make out a case of his client having been prejudiced by the supposed defect caused by the alleged failure of the Court to adhere rigidly to the provisions of Rule 4 of Order 20, Code of Civil Procedure. There is thus no force in the objection of the learned Counsel and the same is overruled.

(3.) THE Plaintiff in the case under examination fixed Rs. 8000 as the value of his claim for purposes of jurisdiction. This was incidentally the same value as was required to be fixed by Section 7, Sub -clause (IX), Court fees Act. Without evidence that the market value of the mortgaged property was in excess of Rs. 8000, it would not be reasonable or fair to presume that Rs. 8000 did not correctly represent the market value. There has thus been no deviation from or infringement of the rules of the Suits Valuation Act relating to fixation of value of the suit for purposes of jurisdiction. Coming to Rule 9 framed under Section 28, Patiala Civil Courts Act, which has now been repealed by Section 119, Ordinance No X [10] of 2005 it has to be observed that it requires that the value of a redemption suit for jurisdictional purposes should be the aggregate of the principal and interest due on the date of the suit for redemption. The interest has to be calculated according to the terms of the mortgage and if none is found due on the date of the suit the principal alone would form the value for jurisdiction. In view of the peculiar terms of the contract of mortgage made on 1 -5 -1951 Bk. and the fact that the accounts must have been with the mortgagee and they were not produced, it was not possible for the Plaintiff to ascertain if any money was at all duo as interest to the mortgagee on the date of the suit and now on investigation of the issue regarding the amount due to the mortgagee, it has been found that he is not entitled to any. No objection regarding jurisdiction was raised in the trial Court till 29 -10 -2005 when the case had come up for arguments and in her application submitted on that day Rule 15, High Court Rules, which has absolutely no bearing on the question of jurisdiction was depended upon to support her objection. Even in this Court in ground No. 12 of the appeal, it has been stated.