KANHAIYALAL Vs. JAGANNATH SINGH

JUDGEMENT

(1.) THIS revision application is directed against the order of the Civil Judge, Udaipur dated 9th October, 1969 by which he held that the defendants-mortgagees' claim for cost of the improvements is a counter claim and is chargeable with court-fees under the Rajasthan Court Fees and Suits Valuation Act, 1961.

(2.) THE facts leading to this revision application are as follows: Daulatsingh and years with possession for Rs. 3,499/- in favour of one Sohanlal by a mortgage-deed dated 29-1-1938. The mortgagors died and their descendants are Jagan-nath Singh (plaintiff No. 1), Shrimati Mangi Bai (Plaintiff No. 2), Smt Nathi bai (Plaintiff No. 3) and Inderlal (defendant No. 2) and Chhoteylal (defendant No. 3 ). The mortgagee is also said to have died and his heir is Kanhaiya-lal petitioner. After a notice, the plaintiffs filed a suit for redemption of the mortgage against kanhaiyalal petitioner. Kanhaiyalal inter alia pleaded in his written-statement that he has in-curred a sum of Rs. 9,421/- on account of improvements made by him in the suit property. He, therefore, claimed the recovery of the amount along with the mortgage money. The plaintiffs' contention in the lower court was that the claim of Rs. 9,421/- was in the nature of a counter claim and unless court-fees is paid by him, the plea cannot be entertained. The learned Judge after having heard learned counsel for the parties before him held that the claim set up by the defendant-mortgagee was chargeable with court-fees tinder Section 8 of the rajasthan Court-fees and Suits Valuation Act, 1961. This order is under challenge before me.

(3.) NONE of the plaintiffs has appeared in this Court in spite of notice. I have heard shri Arjunlal Mehta and his contention is that the claim set up by the defendant-mortgagee was not in the nature of a counter claim, but is a part and parcel of the transaction of the mortgage. It is also submitted by him that the mortgage was in the nature of a usufructuary mortgage and the mortgagee had no remedy by way of sale or foreclosure, nor was the mortgagee entitled to sue for recovery of money. A mortgagee has no right to recover the costs of the improvements by an independent action and as such no court-fees is payable on this claim-He has also relied upon the terms of the mortgage deed dated 29-1-1938 by which the mortgagee was empowered to Incur expenditure for the improvement of the mortgaged property and the costs of the said improvements could be recoverable at the time of redemption.