CHHAGANLAL Vs. JHUMAKLAL

JUDGEMENT

(1.) THIS second appeal has been filed by the mortgagee against the judgment and decree passed by the learned Civil Judge, Doongarpur, up holding the decree passed by the Munsif, Sagwara, in a suit for redemption.

(2.) THE property in dispute between the parties, which is situated in the town of Sagwara, belonged to one Nihalchand who mortgaged the suit house with possession with Jadavchand, father of the defendant for a sum of Rs. 580/ - by a registered mortgage -deed dated January, 7, 1920 for a period of 15 years. Nihalchand mortgagor died leaving the plaintiff Jhumaklal as the nearest reversioner, being the son of Nihalchand's nephew. Nihalchand also executed a will dated May 14, 1945 leaving all his immovable property to the plaintiff Jhumaklal.

(3.) AS the original mortgagee, Jadavchand had expired, plaintiff Jhumaklal filed a suit for redemption of the mortgaged property against the defendant and stated that he was willing to pay the mortgage amount to the mortgagee's legal heir. In the written -statement, defendant Chhaganlal addmitted that the suit property was mortgaged by the deceased Nihalchand in favour of his father Jadavchand. However, the defendant denied that the plaintiff was the legal heir of the mortgagor Nihalchand and was entitled to redeem the property. It was also pleaded by the defendant that he and his father during the continuance of the mortgage, had spent a sum of Rs. 4884.25 on making repairs and constructions in the mortgaged property and that in case a decree for redemption is passed, the defendant was entitled to the re -imbursement of the aforesaid amount spent by him on repairs and on making constructions in the mortgaged -property together with interest thereon in all a sum of Rs. 6816 62. The suit for redemption was decreed by the trial court and the decree was upheld by the first appellate court; and it was held by both the courts below that the plaintiff was entitled to claim redemption both on the ground that he was the nearest heir of deceased Nihalchand and also on the ground that Nihalchand had executed a registered will in favour of the plaintiff on May 14, 1945. It was held that the plaintiff's father Ratan Chand was the adopted son of Talak Chand who and Gulabchand father of Nihalchand were both real brothers. On the question of improvements alleged to have been made by the mortgagee, it was held that the mortgagee was entitled to a sum of Rs. 316. 90 in respect of repairs and improvements, besides the principal amount of Rs. 580/ -, in all a sum of Rs. 896.90.