SHANTI DEVI Vs. NAND LAL

JUDGEMENT

(1.) This is second appeal by the defendant against the judgment and decree dated 1-2-2002, whereby learned Additional District Judge No. 3, Jaipur City, Jaipur affirmed the judgment and decree of redemption passed by Additional Civil Judge (Junior Division) No. 1, Jaipur City, Jaipur, on 20-8-1997. The parties hereinafter shall be referred as arrayed in the plaint.

(2.) The plaintiff filed a suit on 22-5-1984 for redemption and possession of mortgaged property with the averments that House No. 4784 situated in Jaipur as described in para 1 of the plaint was mortgaged with the defendant vide registered mortgage-deed dated 16-11-1978 only for Rs. 16,999/-, for a period of seven years. The value of this property at that time was Rs. 60,000/- and the plaintiff never sold this property to the defendant. The cause of action arose to the plaintiff on 29-12-1983 when the defendant represented that she had become absolute owner of this property. The plaintiff was and is still ready to pay the mortgage money and thus the plaintiff is entitled to a decree of redemption of the mortgaged property with possession of the same and the defendant should be restrained not to make any alteration in the said property.

(3.) The defendant vide written statement submitted on 25-5-1985 pleaded that the registered mortgage-deed was executed in compliance of earlier agreement of conditional sale dated 19-4-1976 and it was agreed upon between the parties that the defendant would become absolute owner of this property after expiry of a period of seven years. Since the plaintiff did not pay the said amount of Rs. 16,999/- within a prescribed period of seven years, the defendant became the absolute owner of the same and now the plaintiff has no right to redeem. It was also pleaded that it was not necessary for her to obtain any decree of foreclosure against the plaintiff as the property was not mortgaged but sold to her by conditional sale. It was also pleaded that the plaintiff applied and obtained permission of the competent authority of Urban Lands Department before execution of the registered document dated 16-11-1978. In the alternative it was pleaded that in case the transaction is treated to be mortgage, the defendant is entitled to receive from the plaintiff an additional amount of Rs. 6.000/- spent by her on improvement of the property and a sum of Rs. 3000/- towards additional loan advanced by her to the plaintiff.