KISHEN RAJ Vs. RADHALAL

JUDGEMENT

(1.) THIS is a second appeal by the defendant Kishenraj and others in a suit for redemption of mortgage.

(2.) THE appellants are mortgagees. Contesting respondents Nos. 1 to 3 who were plaintiffs in the trial court brought this suit on the 30th July, 1948, in which they also impleaded Sheo-raj as one of the defendants. The case of the plaintiffs was that they were the heirs of the deceased Laxminarain, the original mortgagor, who had executed a mortgage of the suit property in favour of the constesting respondents by a deed dated Samwat 1998 Bhadwa Vadi 10 (7th August, 1941) to secure a loan of Rs. 2400/- in all out of which Rs. 1600/-were to carry interest at the rate of 12 annas per cent per mensem and Rs. 800/-were Bhoglawa, that is, this latter sum was not to carry any interest. The plaintiffs further stated that they had Impleaded Sheoraj as a defendant as he was not prepared to join the suit. The plaintiffs also stated that they had given a notice to the defendants to redeem the property on the 12th July, 1948, but the latter declined to give any redemption, and, consequently, they were compelled to institute the present suit. The plaintiffs' prayer was that the redemption of the suit property be allowed to them on payment of a sum of Rs. 3400/-to the defendants.

(3.) THE defendants appellants admitted that the deceased Laxminarain had executed a mortgage with respect to the house in suit for a sum of Rs. 2400/-in their favour and that the particulars mentioned in connection with that mortgage in the plaint were correct. They, however, resisted the suit on a number of grounds all of which need not be mentioned for the purposes of the present appeal. The main contention raised by them Was that so far as they knew, defendant respondent Sheoraj was the lawful heir of the deceased Laxminarain, and that the plaintiffs were not his lawful heirs, and consequently, they had no right to redeem the suit property. They further contended that the said Sheoraj had gone into accounts with them on the 22nd December, 1947 and had acknowledged a sum of Rs. 7001/-as due on the suit mortgage inclusive of certain further dealings between them and laxminarain and Sheoraj as a result of which in all they claimed a sum of Rs, 7301/- as principal and Rs. 500/- as interest, total Rs. 7801/-, the interest having been calculated at the rate of 10 annas per cent, per mensem. It was contended that Sheoraj had executed a fresh deed of mortgage in their favour, which however, was not registered. The defendants further contended that they had spent a sum of Rs. 300/-on some litigation with one Mohanlal who was a neighbour in connection with some construction which the latter wanted to raise close to the entrance door of the suit house. The defendants claimed that they were entitled to this amount inasmuch as if they had not raised an objection to the construction sought to be made by Mohanlal, the mortgaged house would have become entirely useless. Consequently, the defendants claimed that if the court should come to the conclusion that the plaintiffs had any locus standi to bring the present suit for redemption, such redemption should be allowed to them on payment of a sum of Rs. 8101/-in addition to interest and cost of the suit. It may also be mentioned, before proceeding further, that although the defendants did not raise any specific contention in their jawab-dava that they had actually spent a particular amount of money by way of repairs to the house in question, they claimed at the trial a sum of Rs. 600/-on account of repairs to the suit house. So far as defendant respondent Sheoraj is concerned, he filed a jawabdava in which he admitted to have executed a fresh deed of mortgage in favour of the contesting defendants after going into accounts with them and although he admitted that he as well as the plaintiffs respondents were equally related to the deceased Laxminarain, he contended that the plaintiffs had no right as they had refused to incur any expenditure in connection with the death ceremonies of laxminarain and when called upon to do so, they clearly stated that neither they would contribute to any such expenditure nor they would lay any claim to the estate ot the deceased.