GOPI LAL Vs. ABDUL HAMID

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption and is on behalf of the principal defendants, the mortgagees. There were many defendants, out of whom defendants 1 to 9 are parties as the legal representatives of the mortgagees. They have acquired the rights of the mortgagors in a fractional share in the mortgaged property. The plaintiffs represent the mortgagors interest in a fractional share and the remaining defendants represent the mortgagors interest in the balance of the property. The plaintiffs share in the mortgaged property has been found to be, roughly, seven-sixteenths.

(2.) The mortgage was made in 1859 and was in respect of a piece of land with a katcha house over it. The amount of the mortgage money was Rs. 400. The principal amount was to be paid within two-and-half years and in default of payment the mortgagees were to be treated as the owners of the property. In other words, the mortgage was one by conditional sale.

(3.) The suit was instituted almost at the end of 60 years from the due date. It was resisted on the ground that the defendants had spent a large amount of money on building on the land and the plaintiffs could not succeed without paying compensation for the improvements made. The Court of first instance decreed the suit for the share found by it as due to the plaintiffs on payment of a proportionate portion of the original mortgage money. There was an appeal and the learned Subordinate Judge who heard the appeal in the first instance remanded the suit to the Court of first instance for an estimate of "the value of the improvements proportionate to the share of the plaintiffs." The learned Judge was of opinion that the plaintiffs were bound either to pay their proportionate share of the improvements or to sell their own interest in the mortgaged property. He was of opinion that Section 51, T.P. Act, was applicable to the case. The remand was, by a subsequent order, to be treated as one under Order 41, Rule 25, Civil P.C. The learned Munsif recorded a finding and, then, the case was reheard by the successor in office of the Subordinate Judge who had heard that appeal in the first instance. The second officer found, agreeing with the Court of first instance, that the entire value of the buildings that stood on the land was Rs. 8,000. It was found as a fact that the mud building that stood on the site at the date of the mortgage fell down shortly after the mortgage, and the mortgagees built on the site at the expense of the amount already mentioned. On this finding the learned Subordinate Judge passed an elaborate decree the main feature of which was that defendants 1 to 9 were to receive, besides a proportionate amount of the mortgage money, a sum of Rs. 3,799-5-6. In case the plaintiffs failed to pay the said amount of Rs. 3,000 odd, being the amount of compensation, the defendants were to pay a sum of Rs. 5,000 odd to the plaintiffs as the price of the share of the plaintiffs in the site. The decree further directed that in the case of the mortgagees failing to pay certain other rules would apply. These rules related to payment of rent and other matters.