BANWARILAL Vs. AMBALAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption in respect of a house situated at Udaipur, more particularly described in para No. 1 of the plaint.

(2.) THE house in dispute was mortgaged by Champalal and Moonlal for Rs. 1,999 on 9 -11 -20 in favour of Kesarilal for a period of 11 years. Both Champalal and Moonlal died. The legal representatives of Champalal are the plantiff Ambalal and defendant Narain Villabh. So far as Mooulal is concerned, his sole legal representative is defendant Kajodilal. The mortgagee Kesarihl also died and his legal representatives are Mst. Kastootbai and Banwari Lal. On 18 -5 -63 Banwarilal sub -mortgaged the property in favour of Motilal for Rs. 4999. On 17 -8 -63 the plaintiff Ambalal served a notice calling upon the mortgagees and sub -mortgagees to accept mortgage money and redeem the house . Ultimately, the plaintiff Ambalal filed the suit for redemp ion in the Court of Munsif, Udaipur and valued the suit for the purposes of jurisdiction at Rs. 1999 and paid the court -fee ad valorem on the said amount. The plaintiff impeaded Mst Kastoorbai, Banwarilal, Motilal, Kajodilal and Narain Vallabh as defendant. The suit was contested by Banwar lal, Motilal and Mst. Kastoorbai. They admitted the mortgage dated 9 -11 -20 for Rs. 1999 in favour of Kesarilal. They alleged that on 8 -12 -20 the plaintiff's father Champalal further borrowed a sum of Rs. 200 and created a charge of the said amount on the mortgage house and agreed that the house would be redeamed only on payment of both the same. namely, Rs. 1099 and Rs. 200 - total Rs. 2199. They pleaded that in view of the above facts, the mortgage amount was not Rs. 1999 but Rs. 2199 and as such the learned Munsif had no jurisdiction to try the suit. It may be mentioned here that in those days the Munsif had jurisdiction to try the suit up to the valuation of Rs. 2000. The defendants further pleaded that they had invested Rs. 4600 on improvements of the mortgages property and according to the terms of the mortgage -deed, they had the right to incur expenditure on improvements and also to realise the same from the mortgagor at the time of redemption. On the pleadings of the patties, the following issues were framed: .........[vernacular ommited text]........... The learned Munsif after evidence held that since the original mortgage dated 9 -11 -20 was executed by several mortgagors and the subsequent debt was borrowed on 8 -12 -20 by the plaintiff's father alone, the mortgagees cannot in the present suit compel the plaintiff mortgagor to make the payment in respect of the subsequent charge of Rs. 200. The learned Munsif further found that the valuation of the suit and the court fee paid there on was proper and the suit was triable by him. Dealing with the question of improvements the learned Munsif found that the mortgagees spent Rs. 1000 on improvements & therefore they are entitled to recover that amount from the plaintiff mortgagor, He accordingly decreed the plaintiff's suit for redemption on payment of Rs. 1999 as mortgage money & Rs. 1000 Incurred on improvments total Rs. 2,999/ -. Dissatisfied with the said decree. both the parties preferred separate appeals The learned Senior Civi1 Judge, Udaipur, who heard the appeals, dismissed both the appeals The defendant mortgagees have now preferred the second appeal to this Court.

(3.) THERE is no force in this appeal and it is dismissed. The parties shall give and take costs of this appeal as alto the costs in the two court below according to their success and failure.