CHHEDI LAL Vs. BABU NANDAN

JUDGEMENT

(1.) This is an appeal by the plaintiff in a. suit for redemption. A decree for redemption has been, passed in the appellant's favour but he objects to the amount which he has been ordered to pay. On 15 January 1906 a deed of usufructuary mortgage was executed by two brothers, Sahdeo Singh and Bahadur Singh, in. favour of one Mt. Subhagi and it was stated in the deed that the amount advanced by the mortgagee to the mortgagors was Rs. 1200. The property mortgaged was described in the deed as a "kachcha built tiled shop-with compound...situate in mohalla Maidagin...Benares city." Sometime later, one of the mortgagors Bahadur Singh, died and his successors-in-interest are. his sons who are defendants 8 to 11 in the present suit.. On 30 November 1936, Sahdeo Singh and the sons of Bahadur Singh sold the mortgaged property to the present plaintiff-appellant, Chhedi Lal. The mortgagee, Mt. Subhagi, is dead and her successors-in-interest are defendants 1 to 6. The surviving mortgagor, Sahdeo Singh, is defendant 7. The plaintiff's case was that the mortgagee did not advance to the mortgagors Rs. 400 out of the mortgage money mentioned in the deed and that thus the principal mortgage money was only Rs. 800 and not Rs. 1200. He alleged in para. 10 of the plaint that the mortgagee, Mt. Subhagi, had appropriated the timber of a nib tree and the materials of the house that had been mortgaged to her and that the value of the timber and the materials was Rs. 500. He did not, however, allege in the plaint that this amount, or any other amount, should be deducted from the sum of Rs. 800 which, according to him, was the principal amount advanced by the mortgagee. On the contrary,, he stated in para. 10 of the plaint that the mortgage was redeemable on the payment of the sum of Rs. 80O and prayed in para. 14 that a decree for redemption be passed in his favour subject to the payment by him of that sum. Paragraph 5 of the plaint was as follows: Without the knowledge, information and consent of the mortgagors, Jagar Nath Sahu, the husband of Mt. Subhagi, mortgagee, got the following conditions incorporated in the-mortgage deed, dated 15 January, 1906, sought to be redeemed : We further declare that if the mortgagee constructs any building on the mortgaged property by demolition of the mortgaged property, or otherwise, we the executants or our heirs shall pay the entire mortgage money with costs of construction, according to the account produced by the-mortgagee, at the time of redemption of the mortgaged property and then the mortgaged property shall be redeemed. We the executants shall continue to pay the present tax or ground-rent or any other tax which may be imposed in future. If we, the executants, fail to pay the tax and ground-rent, the mortgagee shall continue to pay it. The mortgaged1 property shall be redeemed on our payment of the entire-tax and ground-rent paid by the mortgagee, together with interest, at the time of redemption (of the mortgage) Paragraph 6 was as follows : "The above condition was neither binding on the mortgagors, nor is binding on the plaintiff. The condition relating to construction is inequitable and very hard. For this reason also, it was neither binding on the mortgagors nor is (it) binding on the plaintiff." It will be noticed that it was not pleaded in so many words that the stipulation quoted in para. 5 of the plaint amounted to a clog on the equity of redemption. It appears, however, that the point was raised at the trial and issue 3 was framed on the point which; was as follows: "Whether the conditions in the deed dated 15 January 1906, about construction, repairs, payment of taxes and parjot amount to a clog on the equity of redemption and are not binding?" The plaintiff further alleged in the plaint that the mortgagee, Mt. Subhagi, after taking possession of the property mortgaged, had the buildings existing at that time demolished and had constructed in place thereof a new house "without any right and title." It was also alleged that the mortgagee had spent Rs. 2000 on the construction of the new house but that she was not entitled to claim that sum of money from the mortgagors.

(2.) The suit was contested by defendants 1 to 4 only. It is stated in the judgment of the trial Court that these defendants had alleged before that Court that defendants 5 and 6 had transferred their interest in the mortgage to the contesting defendants. Neither defendants 5 and 6 nor defendants 7 to 11 appeared in either of the Courts below nor has any of them appeared in this Court. Various pleas were raised by defendants 1 to 4, who alone will be referred to in this judgment as the mortgagees, or the defendants, or the respondents. They alleged that the transaction of 15 January 1906, was in reality a sale and was put in the garb of a mortgage with the object of avoiding the payment of zare chaharum to the zamindar. They further alleged that the mortgagee, Mt. Subhagi by virtue of the authority given to her by the express covenant embodied in the deed -- which, as shown above, was quoted in para. 5 of the plaint?had erected a pucca building in place of the kachcha tiled shop which had been mortgaged to her, that she had spent at least Rs. 10,000 in the construction, that the building which had been mortgaged had been in a very bad and dilapidated condition and that the mortgagee's action in putting up the pucca building in place of the kachcha structure that had stood there had been in good faith. It was pleaded that the plaintiff could not, in any event, obtain redemption without paying the sum of Rs. 10,000 to the mortgagees defendants on account of the cost of this pucca building. They further claimed certain sums of money on account of municipal taxes, ground-rent, annual repairs and the expense incurred in obtaining water and drain connexions from the Municipal Board.

(3.) The Munsif held that the deed in question was a mortgage deed and not a sale deed, as alleged by the defendants. He next held that the allegation of the plaintiff that the mortgagee had advanced only Rs. 800 to the mortgagors was not correct and that the mortgage money shown in the deed, viz., Rs. 1200 was correct. On issue 3 he expressed the opinion that the covenant relied upon by the defendants and challenged by the plaintiff should not be "strictly enforced, but the defendants are entitled to claim the value of the lasting improvements and accessions to the property in suit after allowing for the price of the materials which they removed from the mortgaged property." He held that the matter was governed by Sections 63A and 72, T.P. Act. He also expressed the opinion that the pucca building erected by the mortgagee could be treated as an accession within the meaning of Section 63, T.P. Act. He then found that the cost of the pucca building was Rs. 8125. To this he added the sum of Rs. 1200, the principal mortgage money. With regard to the other items claimed by the defendants, he held that they were entitled only to a sum of Rs. 165 on account of the ground-rent that they and Mt. Subhagi had paid. He, however, deducted Rs. 90 out of this sum of Rs. 165 because he held that the mortgagee had appropriated the timber of a nib tree and the materials of the old house which he valued at Rs. 15 and Rs. 75 respectively. Thus the total amount which he found to be payable to the defendants by the plaintiff was Rs. 1200 + Rs. 8125 + Rs. 75, i. e., Rs. 9400. It will be noticed that the Munsif deducted what he considered to be the value of the timber of the nib tree and of the materials of the house from the amount found payable to the defendants although the plaintiff had not, as already stated, claimed any such deduction.