RAM ASRAY Vs. HIRA LAL

JUDGEMENT

(1.) This is the plaintiff's appeal against the decree of Mr. Surendra Vikram Singh, Civil Judge, Unnao, dated 4 June 1942.

(2.) It appears that the appellant Ram Asray (who has died since the filing of the appeal and is now represented by his widow Mt. Sochana-Devi, his son, Radhey Lal and his daughter, Mt. Sukh Dei) and his brother Bhola mortgaged a certain kachcha house and ahata in the town of Unnao to one Mohan Lal on 19 March 1906, for Rs. 200. The rate of interest was 15 per cent, per annum simple. Under this deed the mortgagee was given possession of the property. It was specifically stated in the mortgage deed that the profits of the property shall be deemed to be Rs. 20 per year and, as the interest due on the loan would exceed the income derived from the property, the deficiency, that is, Rs. 10 would be paid in cash. It was also provided in the mortgage deed that the repairs would be done annually by the mortgagors but in case they failed to do so the mortgagee would be entitled to make them and to recover the cost of repairs at the time of redemption along with the mortgage money. Mohan Lal remained in possession till 17 September 1915, when he sold his entire mortgagee rights to Hira Lal, the respondent. In the year 1940 the appellant Ram Asray filed a suit for redemption alleging that the entire mortgage money had been paid off from the usufruct of the property and the property should be redeemed without any further payment by him. It was also alleged that the profits from the property were more than the interest. The respondent said that he had rebuilt the mortgaged property and made it entirely pacca at a cost of Rs. 2,322-5-6, and as he had spent money on repairs and had paid the water-tax and the house-tax the amount still due to him was Rs. 4,460-14-9. The trial Court held that the respondent was entitled to receive Rs. 493-15-3, and accordingly directed the plain-tiff to pay the same before he could get the property.

(3.) On appeal the learned District Judge held that the plaintiff could redeem the property on paying Rs. 1,463.12-3 provided he took the water pipe which had been laid in the house by the respondent, but if he did not wish to take that pipe then he should pay Rs. 1,437-5-0. The learned Judge held that the respondent was entitled to receive the amount which he paid as house-tax and as water-tax, that the respondent was entitled to receive also the sum of money he had spent on the repairs and this he calculated at a flat rate of Rs. 10 per year for 25 years from 1915 to 1940. The learned lower appellate Court also held that the rate of interest could not be reduced. It also held that although the mortgaged property had been demolished and rebuilt without authority or justification by the respondent, the appellant was entitled to the house without having to pay anything for the construction, but the appellant was not entitled to receive an account of the higher profits that may have been derived by the mortgagee from the property, and that in such circumstances the trial Court was wrong in assessing the annual profits at Rs. 60 instead of the agreed amount of Rs. 20. As already indicated the learned appellate Court directed the appellant to pay a higher amount of money than the trial Court had ordered for re-demption.