MOTILAL Vs. JEETMAL

JUDGEMENT

(1.) THESE are two connected appeals filed against the single judgment and decree by the District Judge, Ajmer dated 153. 1965 in Civil Appeals Nos. 887 and 366 of 1965 arising out of a suit for redemption of mortgage.

(2.) ON 9. 3. 1908 one Brij Mohanlal mortgaged undivided l/4th share belonging to him in the house in question situated in the city of Ajmer with Dewan Bahadur Ummedmal, ancestor of defendants Nos. 4 and 5 Sobhagmal and Sampat Mal for a sum of Rs. 10,000. ON 2. 12. 1918 Brij Mohanlal sold away the equity of redemption in the mortgaged property to one Suwalal who was the owner of the rest of the 3/4th share in the house. Defendant No. 4 Sobhagmal filed a suit for partition and possession of 1 /4th share in the house against Suwalal and others in the Court of Sub Judge, First Class, Ajmer and obtained a preliminary decree on 20. 12. 1928 vide Ex A 2. This decree was confirmed in appeal by the Judicial Commissioner, Ajmer-Merwara by his judgment dated 25 9. 1932. ON 31. 7. 1958 the defendants Nos. 4 and 5 sold away their mortgagee rights to defendants Nos, 1 to Motilal, Gulabchand, and Heeralal and put them in possession of the l/4th share in the house which the defendants Nos. 4 and 5 had obtained by partition by metes and bounds The plaintiffs Jeetmal and Shiv Prasad purchased the equity of redemption in respect of the disputed property from Suwalal, transferee from the original mortgagor Brij Mohanlal vide sale deed Ex. 1 dated 10. 9 1958. ON 14. 10. 58 Jeetmal and Shiv Prasad filed the present suit in the Court of Civil Judge, Ajmer for possession of the property in dispute by redemption on payment of Rs. 10,000.

(3.) IN Wasu Ram vs. Mohammad Ramzan (l 1) where in a case of a mortgage with possession although no condition was inserted in the deed about crediting rents and profits to the mortgagor, this condition was held to be implied owing to the relationship of mortgagor and mortgagee between the parties. It was observed that the property is mortgaged only as a security for the mortgage debt and whatever rents and profits are received, must obviously be applied towards the mortgage deed. It was further held that if the mortgagee has incurred the cost of improvements which have yielded rents and profits, he is of course entitled to claim the cost with interest, but the interest and the rent may be taken to counter balance each other. IN the present case, there is no evidence that the mortgagee had realised any rent on account of the improvements and new constructions made by him. The learned District Judge has assessed such rent or profits at 6% per annum, as in his view, the improvements and the new construction must have resul-ted in enhanced income to the mortgagee which should not ordinarily have been less than 6% per annum on the amount invested By the terms of the mortgage deed the mortgagee was not liable to account for the enhanced income. There is no evidence to show as to whether the improvements and new constructions had yielded any rents or profits to the mortgagee. Then again, it must be borne in mind that the mortgagee had not got possession of the mortgaged property till it was partitioned by a decree of the Court. Taking all these circumstances into consideration it would be proper to relieve the mortgagor of the term regarding interest on the improvements to this extent only that he would be liable to pay interest on the cost of improvements at 9% per annum. This disposes of the defendants' appeal.