BECHU Vs. BHABUTI PRASAD

JUDGEMENT

(1.) This is an appeal by defendant 1 from the decree passed by the learned Additional Subordinate Judge of Benares on appeal from that of a Munsif of that district in a suit brought by the plaintiff-respondent for recovery of possession of a bungalow situate in Moghal Sarai, offering to pay any sum of money which defendant 1 may be found equitably entitled to. The defendant-appellant obtained, possession of the bungalow in dispute under a mortgage deed, dated 26 March 1912, executed by Mt. Ram Dulari, defendant 3, mother of the plaintiff, who was then a minor, for a sum of Rs. 1,400. It is not disputed that Mt. Ram Dulari was the certificated guardian of the plaintiff's person and property and that she executed the aforesaid usufructuary mortgage-deed without previously obtaining the permission of the District Judge under Section 29, Guardians and Wards Act. The result is that the mortgage is voidable at the option of the plaintiff- respondent : vide Section 30, Guardians and Wards Act.

(2.) The defendant-appellant has been in possession ever since the date of the mortgage and has erected a number of new buildings in the compound of the bungalow as it was at the time of the mortgage. The total cost of these constructions is alleged by the defendant to be Rs. 11,621, which he claims over and above the principal sum due under the mortgage deed. He also claims Rs. 13,836 interest on the outlay at the rate of 2 per cent per mensem in terms of a stipulation entered in the mortgage deed which permits the mortgagee to effect repairs of the mortgaged premises and to make such new constructions as he liked at his own expense, and entitles the mortgagee to recover all the sums thus spent by him with interest at that rate at the time of redemption. Another small amount claimed by the mortgagee is a sum of Rs. 168-7-0, being the revenue paid in respect of the site. The total sum which according to the defendant, is payable by the plaintiff for recovery of possession of the property in dispute is Rs. 27,025-8-0.

(3.) The Court of first instance decreed possession to the plaintiff-respondent on condition of payment by him of the round sum of Rs. 12,000 which represents Rs. 1,138 out of the principal sum of Rs. 1,400 advanced under the mortgage deed, being the amount spent in discharge of a debt due from the plaintiff's father, and Rs. 11,621, the cost of new constructions made by the mortgagee. The view of the trial Court is based on Section 63, T. P. Act, under which a mortgagee is entitled to costs of such improvements as are not separable from the property originally mortgaged. The lower appellate Court has differed from that view and held that the mortgage being voidable at the option of the plaintiff-respondent, the defendant-appellant is entitled to no more than the sum of Rs. 1,138-9-0 out of the consideration of Rs. .1,400, together with Rs. 237 spent by the mortgagee on necessary repairs of the bungalow mortgaged. As regards newly added buildings, the learned Additional Subordinate Judge is of opinion that the mortgagee cannot insist on payment of what he has spent on those constructions under any rule of law. Accordingly he passed a decree in favour of the plaintiff-respondent on payment of Rs. 1,375-90 giving liberty to the defendant-appellant to remove the materials of the buildings made by him in the compound of the bungalow in dispute.