CHANDANBAI Vs. JAGJIWANLAL

JUDGEMENT

(1.) THIS is a second appeal by the defendant Mst. Chandanbai against the judgment of the Civil Judge, Udaipur, dated 10-12-1951, in a suit for redemption.

(2.) THE plaintiff respondent Jagjiwanlal as a minor and brought this suit through his next friend Mst. Kankubai, his mother in his capacity as the legal representative of his ancestor Jawanji who is alleged to have made the mortgage of the suit shop-cum-house, situate in village Dhulev and the boundaries whereof are mentioned in para (1) of the plaint, in favour of Sankad Chand an ancestor of the defendant appellant by a mortgage deed dated Kati Vadi 11 Smt 1920 for Rs. 861/ -. The mortgage was with possession. It was further alleged in the plaint that the mortgagee had spent a sum of Rs. 111/5/- by way of improvements to the suit property in Smt. 1930 and this was acknowledged on behalf of the plaintiff's ancestors on the deed itself, and later in smt. 1952 a further sum of Rs. 39/-was spent on repairs thereof, and the same was also acknowledged to have been spent on behalf of the plaintiff's ancestors and thus a sum of Rs. 1011/5/-became payable with respect to the mortgage up to the Smt. year 1952. The case disclosed in the plaint further was that in Samwat year 1986, the plaintiff's estate was taken under the management of the Court of Wards of the former State of Udaipur, and some proceeding was apparently commenced in connection with the redemption of the mortgage, and during that proceeding, the mother-in-law of the defendant appellant Mst. Kesharbai widow of Hiralal made an application through her son-in-law Ratanlal on Kati Vadi 7th Smt. 1987 in which the mortgage in question was admitted, (See Ex. 1), and Ratanlal further gave a statement (Ex. 2) in which he admitted the mortgage and he also produced a copy of the mortgage (Ex. 3) before the Munsarim of the Court of Wards. Although it was not mentioned in so many words, the plaintiff obviously relied on these documents as containing the admission of Mst. Kesharbai and Ratanlal with respect to the mortgage, and these admissions were intended to be utilised as acknowledgments so as to bring the plaintiff's suit within limitation. The plaintiff further alleged that he had asked for redemption of the suit property a number of times from the defendant appellant, and had also given a notice in writing for the same purpose, but the defendant appellant declined to give redemption. Consequently, the plaintiff instituted the present suit for redemption on 8-4-1948, in the court of the Munsiff Dungarpur.

(3.) THE defendant appellant resisted the Suit on a number of grounds though she admitted that she was the descendant of Sankadchand and was his sole legal representative. The appellant denied the plaintiff's title to the suit property as also the alleged mortgage of Smt 1926, for Rs. 861/-and the alleged endorsements as to repayments in samwat years 1933 and 1952. The defendant further denied that the estate of the plaintiff respondent was ever placed under the management of the Court of wards and contended that, in any case, the entire proceedings which had taken place there were inadmissible in evidence. In particular she denied that her mother-in-law Mst. Kesharbai or the latter's son-in-law Ratanlal had made any application or produced a copy of the deed of mortgage or made any acknowledgment with respect to the mortgage before the Munsarim and alternatively that if the persons above-named had done any such thing, then the defendant appellant was not bound there by inasmuch as neither the defendant's mother-in-law nor Ratanlal had any right whatever to conduct any proceedings in connection with the mortgage or to make any acknowledgments in respect thereof, and, therefore, the appellant being the sole owner of her husband's estate after the latter's death was not bound by any acknowledgments alleged to have been made by Mst. Kesharbai her mother-in-law or Ratanlal. It was further contended that the plaintiff had never made any demand for the redemption of the mortgage, and that the defendant had never received any notice and that if a notice had been received, in any case, she had never admitted the existence of the mortgage in her reply and that all she remembered in that connection was that a rely had been given, and even if the mortgage of Smt. 1926 were to be accepted for the sake of argument to have been made, then the plaintiff's suit was barred by limitation. It was also contended by the defendant appellant that she, and her husband in his life-time and the latter's ancestors had been in possession of the suit property for a period of about 100 years and that she had inherited the suit property as the sole heir to her husband's estate. It was also pleaded that the acknowledgments on which the plaintiff respondent relied were unauthorised and false, and, therefore, they did not avail the plaintiff to bring his suit within limitation. It was further pleaded in that connection that the relations of the defendant appellant with her mother-in-law Mst. Kesharbai were strained and, that she lived separately from the former and, consequently, she had no authority to make any acknowledgment on behalf of the defendant. Lastly, it was contended that the mortgage was an unregistered one, and, therefore, inadmissible in evidence, and, therefore, the plaintiff's suit should be dismissed.