USHA RANI Vs. PUSHPA DEVI

JUDGEMENT

(1.) THIS Regular Second Appeal arises from the judgments and decree passed by the learned Courts below vide which suit for possession by way of redemption filed by the plaintiff-appellant was ordered to be dismissed.

(2.) THE plaintiff-appellant herein filed a suit against Smt. Pushpa Devi, Darshan Singh and Des Raj Dhir, for possession by way of redemption of a single storeyed house, situated in Mohalla Shergarh, Kapurthala. The said house was under the ownership of Smt. Kesra Devi, widow of Mool Raj. She had mortgaged this house with possession to Pushpa Devi, respondent, No. 1 herein for a consideration of Rs. 3,000/- (Rs. Three thousands) through a Regd. Mortgage Deed dated 30th November, 1962. After the mortgage, defendant No. 1 Pushpa Devi inducted defendant Nos. 2 and 3 as tenants in the house in question and, therefore, they were made parties to the suit. It was claimed that plaintiff-appellant had purchased this house from its owner Smt. Kesra Devi for a consideration of Rs. 7500/- (Rs. Seven thousand five hundred) through a regd. sale deed dated 4th July, 1982. On the basis of the sale deed executed in her favour, she filed a suit for possession by way of redemption of mortgaged property on payment of Rs. 3,000/-. The suit was contested by respondent No. 1 on the plea that the house was mortgaged with her for a period of 58 years and the same could not be redeemed before expiry of that period. However, this plea was disputed on the ground that the stipulation amounts to clog on the equity of redemption and, therefore, it was not biding on the plaintiff-appellant. A plea was further raised that as the right to rent out the house in dispute was given to the mortgagee, the defendants Nos. 2 and 3 being tenants could not be evicted except under the Rent Act. It was further claimed that as the mortgagee had spent a sum of Rs. 5,000/- (Rs. Five thousands) on the improvement of the said house, she was entitled to this amount along with interest @ 1% per month. It was also claimed that as Smt. Kesra Devi was not impleaded as a party, the suit was liable to be dismissed.

(3.) ON the basis of the evidence brought on record, the learned Courts below have recorded a finding that the plaintiff purchased the disputed property from Smt. Kesra Devi. However, on issue No. 2, it was held that the plaintiff was not entitled to redeem the mortgage in view of the stipulation contained in the mortgage deed which barred the redemption for 58 years. On issue No. 3, it was held that the stipulation contained did not amount to clog on the equity or redemption. In view of the findings recorded on issues No. 1 to 3, the suit was held to be premature. The second condition granting permission to the mortgagee by the mortgagor to raise construction on the existing house and claim the charges spent thereon from the mortgagor was also held to be not unreasonable so as to treat it to be a clog on the equity of redemption. In view of these findings, issues Nos. 5, 6 and 7 were held to be redundant. Consequently the suit filed by the plaintiff-appellant was dismissed.