GURDIAL KAUR Vs. PREMINDER LAL DHINGRA

JUDGEMENT

(1.) This appeal has been preferred by the legal representatives of deceased defendants 1, 2 and 4 and by defendant Nos. 3 and 5 against the judgment and decree in case No. 109/1 of 72 before the Sub -Judge (II), Shim la That suit was instituted by Sh. Malvinder Dhingra, praying for redemption of a mortgage deed dated 15 -1 -1953 and for recovery of possession of the mortgaged property and for an account of rents and other sums received by the mortgagee from 7 -1 -1953 till delivery of possession is effected and also for payment of the surplus amounts that may be found due, after deduction of such amounts as might have been spent lawfully under the terms of the mortgage deed together with -interest. Mulvinder Dhingra, who instituted the suit, died during the pendency of the appeal and his legal representatives Preminder Lal Dhingra and Mrs. Indra Dhingra have been brought on record and they are the main contesting respondents in this appeal. Briefly stated, the case of Shri Malvinder Dhingra, as set out in the plaint, is as under :

(2.) On 15 -1 -1953, the property known as Villa Nova main house, with furniture and fittings, pavilion rooms, rickshaw sheds, tennis courts and land measuring about 6624 sq. yards and 3 sq. fret was mortgaged by Shri Malvinder Dhingra to Shri S. Prem Singh, the predecessor -in -interest of the appellants, for a sum of Rs 26,000 and as the mortgage was with possession, no interest was stipulated. The further case of Malvinder Lal Dhingra, the mortgagor was that the mortgagee had realised by way of rents and income from the property, an amount far an in excess of what was advanced, together with interest at 7 -1/2% and on the taking of the accounts, large amounts will be due to the mortgagor and no amount would be due on the mortgage. Referring to the conditions of redemption Shii Malvinder Dhingra stated that the period of mortgage was three years from 15 -1 -1953, i. e. 15 -1 -1956 and the mortgagor could pay the amount and redeem the property within a further period of two years i. e. by 15 -1 -1958 on payment of the full amount of the mortgage money. The further amount of Rs. 10,000 agreed to he paid by the mortgagee was not so paid and that rendered the condition of sale incorporated in the mortgage inoperative, besides being a clog on the equity of redemption, according to Shri Malvinder Dhingra. Stating that possession of the mortgaged property was delivered to S. Prem Singh on 7 -1 -1953 and that after his death, the appellants remained in possession of the mortgaged property and realised rents, the mortgagor put forward the plea that the annual income by way of rents from the mortgaged property was over Rs. 6,000 and the taxes payable per annum amounted to Rs. 445.75 and interest at 7 1/2% per annum on Rs. 26,000 worked oat to Rs. 1,950, and thus the mortgagor claimed that the mortgagee had received more than twice the amount originally advanced and a surplus of several thousands of rupees would be payable to the mortgagor, Malvinder Dhingra. Fn addition, the mortgagor also stated that he is ready and willing to pay any amount that the Court may find due and payable to the mortgagee. Referring to the induction of a tenant by the mortgagee, the mortgagor stated that the tenant had materially altered the structure and had also unauthorisedly and illegally put up some other constructions on the; tennis court and -had also closed the main passage to Villa Nova and the cottage and that had impaired the value and utility of the mortgaged property and that the mortgagor, Malvinder Dhingra is entitled to recover the possession not only from the mortgagee, but also from the tenant. Referring to the issue of notices dated 30 -12 -1957 and 11 -7 -1971, seeking redemption and the inaction of the mortgagee in that regard, the mortgagor prayed for the reliefs referred to earlier.

(3.) In the written statement filed on behalf of the successors -in -interest of the mortgagee, S. Prem Singh, they put forward the plea that the property stood sold to S Prem Singh for a consideration of Rs. 36,000 since 15 -1 -1956, as the mortgagor Sh. Malvinder Dhingra failed to redeem the same within three years from the date of the mortgage. They also stated that the transaction was a sale for a consideration of Rs 36,000, out of which Rs. 2t,000 was paid to the mortgagor, Sh Malvinder Dfungra, aid the balance of Rs. ! 0,000 was agreed to be paid after the production of a duly registered partition deed with the brother of the mortgagor, Sh. Baldoom Dhingra, with an option to the mortgagor that he could take back the property from the mortgagee within three years of the execution of the document. The mortgagor, Sh. Malvinder Dhingra, according to the appellants, failed to do so and at best, he could recover the balance of Rs. 10,000, after complying with the condition, namely, production of a duly registered partition deed with the brother of the mortgagor. The appellants also stated that on and from 16 -1 -1956, they had become the owners of the property, exercising rights over it, in accordance with the terms of the deed dated 15 -1 -1953 Claiming that they had effected repairs and improvements to the mortgaged property at their expanse, the appellants also pleaded that it was agreed that during the subsistence of the mortgage, the income and rents of the property, would be equal to the interest which was payable by the mortgagor, Sh. Malvinder Dhingra. Admitting that a portion of the premises had been let out to a tenant, the appellants stated that it was so done by them, in their capacity as owners of the property, fn the alternative, it was also contended that the act of letting the premises to the tenant was within the competence of the mortgagee and binding on the mortgagor. Ft was also stated that the tenant had expended considerable amounts in improving the property and the construction was put up by the tenant in the presence of the mortgagor Sh. Malvinder Dhingra and no objection was raised, as the mortgagor had treated the property as having been sold to the appellants. Reiterating that the property stood sold to the appellants, it was contended that the value of and income from the property was not more than that for which it was agreed to be sold and the mortgagor had treated it as having been sold, but that owing to a raise in the prices, the mortgagor Shri Malvinder Lal Dhingra had come forward with the suit for squeezing money out of the appellants. The income from the mortgaged property as claimed by the mortgagor was also denied by them. The cause of action for the suit was also disputed. Even if the mortgage is held to be subsisting, according to the appellants, the property was not liable to be redeemed till payment of Rs. 26,000. The appellants also claimed that they cannot be prevented from realising the rents and profits of the property, as even according to the mortgagor, Sh. Malvinder Dhingra, the transaction was a mortgage with possession. Ultimately, the appellants prayed for the dismissal of the suit. In the written statement filed by the tenant, it was stated that the Himachal Pradesh Motors took on lease the ground including the pavilion from Sh. Harcharan Singh, one of the sons of the mortgagee, for carrying on business and had invested large amounts for putting up -constructions and that had been done in the bona fide belief that the possession will not in any manner be disturbed. Stating that the improvements, alterations, etc. were carried out to the knowledge of the mortgagor, Sh. Malvinder Dhingra, and that he did not object to the same, the tenant also put forward a plea of waiver and estoppel A further plea was also put forward that the property stood sold to the mortgagee and the mortgagor did not have any locus standi to file the suit. Claiming that the additions, expansions etc. had improved the leraed premises, the tenant disputed the claim of the mortgagor that the value and utility of the property had been impaired. The tenant also prayed for the dismissal of the suit.