CHUTTANLAL SHRIMAL Vs. THAKUR SALIGRAMJI

JUDGEMENT

(1.) THIS second appeal is by the mortgagees and the receiver to their estate against the final decree passed by the Civil Judge Ajmer and affirmed by the District Judge, Ajmer on 28-1-1970 in a mortgage suit for redemption.

(2.) BRIEFLY stated the facts are that the temple at Hathi Bhata, Ajmer, was founded by Madhodas and he installed the three idols who are three plaintiffs No. l to 3 Shri Thakur Saligramji Maharaj, Shri Thakur Baba Hathi Bhata ji Maharaj and Shri The Gordhannathji Maharaj. The members of the family acquired various properties for the benefit of the three deities and management of the temple vested in a Mahant. Mahant Premdas has been the Mahant since 1928 and looked after management of the temple and the properties under it. One Lachhmanram Bairagi of Pushkar mortgaged he properties in suit with possession with R. B. Seth Mool Chand and Seth Nemichand, the predecessors of the defendants No. 1 to 4, namely Seth Bhagchand Soni, Kr. Prabhachand, Kr. Nirmalchand and Kr. Sushilchand by a registered mortgage deed on 23-7-1885. The property mortgaged consisted of residential house at Pushkar and some agricultural land at Ajmer. The rights of the original mortgagor in the said properties were purchased at a court auction by Nandramdas on 10-7-1890 as Mahant of the three plaintiff deities referred to above. Plaintiffs No. 4 and 5 claim to be the heirs and legal representatives of Mahant Nandramdas. On 8-7-1944 Mahant Premdas sold out the equity of redemption to defendants Nos. 1 to 4, successors of the original mortgagees. Sarjudas and Had Ramdas, plaintiffs Nos. 4 and 5 and the three deities instituted the suit alleging that the transfer of the equity of redemption by Mahant Premdas in favour of defendants No 1 to 4 was null and void, being without authority and legal necessity and they also prayed for redemption of the mortgaged property. It was also set up by the plaintiffs that contrary to the terms of the mortgage-deed, the defendants No. 1 to 4 converted the Ajmer property which consisted of agricultural land into a residential building containing shops as well. Defendants No. 1 to 4 contested the suit on the assertion that the plaintiffs No. 4 and 5 were not entitled to maintain the suit either on their own behalf or on behalf of the three deities. According to the averments, Nandram Das did not acquire the property for the benefit of plaintiffs No. 1 to 3. It was further alleged that the sale-deed in their favour on 8-7-1944 by Mahant Premdas was not invalid, Assuming that he and plaintiffs No. 4 and 5 were members of a joint Hindu family, the sale transaction was a prudent act on behalf of Mahant Premdas as head of the family. As regards the improvements and additions to the mortgaged property, it was alleged that they were made under the terms of the mortgage and the plaintiffs are not entitled to redeem them without paying back the value of the said additions and improvements. The learned trial Judge dismissed the plaintiffs' suit. He held that it was not proved that Madhodas had founded the Hathi Bhata Temple and installed the idols namely the plaintiffs No. 1, 2 and 3 therein. According to him, it was also not proved that plaintiffs No. 4 and 5 and Mahant Premdas defendant No. 5 were descendants and heirs of Madhodas or that they were the members of the joint Hindu family family. He also found that Nandramdas was the Mahant of Hathi Bhata temple, but the purchase of the equity of redemption at the court auction was not for the benefit of the three deities.

(3.) APPENDIX D Form No. 7 annexed to the Code of Civil Procedure prescribes a form in which the decree has to be framed Order XLVIII Rule 3 of the Code provides that the forms given in the appendices with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. The relevant part of the decree framed in the present case reads as follow : ". . . . . . . . . . . . it is ordered as follows : That the appeal be and hereby is accepted and it is held that the plaintiffs were entitled to a declaration that the sale-deed executed by defendant No. 5 on 8-7-1944 in favour of defendants 1-4 is null and void and inoperative as against them. They are also entitled to a preliminary mortgage decree in terms of Order XXXIV, Rule 7 of the Code of Civil Procedure allowing them as may be allowed by trial court to pay the amount that may be found due on the mortgage and directing that on deposit of the amount found due in court within six months of the date when the amount is so declared, the plaintiffs will be entitled to possession of the mortgaged property after a lapse of a further period of three months during which time respondents 1-4 shall be entitled to remove all materials of constructions put up by them on the Ajmer property. This will not prejudice the right of respondents 1-4 under any other law to remove the materials at any time. The plaintiffs will also be entitled to their costs in both the courts. In case of default in depositing the amount found due the suit will stand dismissed with costs in both the courts and the defendants 1 4 will be entitled to a decree for foreclosure in terms of Order XXXIV, Rule 7, C. P. C. Defendant No. 5 will bear his own costs in both the courts.