CHANDANMAL Vs. SALERAJ

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs appellants Chandanmal and another in a suit for redemption. The suit has been dismissed by both Courts below.

(2.) THE appellants are descendants of the mortgagors. The respondents are said to be the descendants of the mortgagees. The relevant pedigree tables were recited in the plaint. The plaintiffs' case is that the suit house was mortgaged by their ancestor Bhuta to Manakchand, Birdichand, Shivchand and others by a mortgage deed dated Kali Vadi 3 of Smt. of 1936 (corresponding to some time in 1879 A. D.)for a sum of Rs. 430/5/-Akheshahi coin which was stated to be equivalent to Rs. 269/6/- in Indian rupees. The mortgage was usufructuary, and it was stipulated between the parties that the house would carry no rent and the money no interest. The plaintiffs appellants further alleged that when they gave notice to the defendants lespondents to redeem the suit house, the latter declined to give redemption by saying that the parties to the mortgage had agreed to postpone redemption for a period of 99 years, and, therefore, any claim for redemption was premature. Consequently, the plaintiffs brought the present suit in the Court of the Mun-siff Jalore on 18th december, 1951, for possession of the suit property by redemption on payment of the sura of Rs. 269/6/- only.

(3.) THE defendants raised a number of pleas but it is unnecessary to make any specific mention of all of them, and it is sufficient to say that their main plea was that the original mortgagors had agreed not to redeem the mortgage before a period of 99 years and consequently the plaintiffs' suit was premature. The defendants also pleaded that the suit property before it had been mortgaged to their ancestors was merely in the form of a plot which had been mortgaged by the ancestors of the plaintiffs to somebody else and that the ancestors of the defendants had helped the ancestors of the plaintiffs to redeem that mortgage and at the same time obtained the mortgage in their own favour, which was agreed between the parties not to be redeemable before a period of 99 years. It was further pleaded by the defendant that under such circumstances the ancestors of the defendants had invested considerable money in building on this plot so that they might be able to use it for their own residential purposes, and therefore it was claimed that the plaintiffs were not entitled in equity to redeem the property before the expiry of the stipulated period of 99 years. The defendants further pleaded that their ancestors had rebuilt the entire house and invested a sum of Rs. 1169/8/-therein and that they were further entitled to interest at 6 per cent p. a. on the amount so invested on the construction of the house but they assessed the entire interests at a round figure of Rs. 650/-only and thus the defendants claimed that they were entitled to receive Rs. 1819/8/-in addition to the mortgage money of Rs. 269/6/ -. Apart from that, the defendants also claimed damages at the rate of Rs. 48/-per year for 26 years (being the balance of the stipulated period) to the tune of Rs. 1128/-, and claimed that they were thus entitled to a sum of Rs. 3217/1/-in all in the event of redemption being decreed in favour of the plaintiffs appellants.