HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 47/1991
1. Smt. Sampati Devi W/o Narsingh Lal (since deceased now been
represented through legal heirs.) (Deleted)
2. Puran Mal S/o Narsingh Lal since deceased now represented by:
2/1. Ratan Devi W/o Puran Mal.
2/2 Kamal Kishore S/o Puran Mal
2/3 Kailash S/o Puran Mal (since deceased through his legal heirs)
2/3/1 Ajay S/o Late kailash
2/3/2 Sanjay S/o Late Kailash
2/3/3 Nirmala D/o Late Kailash
2/4 Shankar Lal S/o Puran Mal
2/5 Prem D/o Puran Mal
2/6 Lali D/o Puran Mal (since deceased through his legal heirs)
2/6/1 Anil
2/6/2 Sunil
2/7 Munni D/o Puran Mal
All residentof Rasta Thakur Pachewar, Ramganj Bazar, Jaipur
3. Gopal S/o Narsingh (Since deceased through his legal heirs)
3/1. Smt. Gyarsi Devi W/o Late Shri Gopal
4. Durga Prasad S/o Narsingh Lal (since deceased through his Legal
heirs)
4/1 Rambabu S/o Late Durga Prasad
4/2 Lalita D/o Late Durga Prasad
5. Banwari S/o Narsingh Lal (since deceased through his legal heirs)
5/1 Virendra S/o Late Banwari
5/2. Lakshmi W/o Late Bhanwari
6. Ramesh S/o Narsingh Lal
7. Radha Kishan S/o Narsingh lal
All residents of Thakur Pachewar ka Rasta, Ramganj Bazar, Jaipur
----Appellants-plaintiffs
Versus
1. Jagannath S/o Shri Gordhan since deceased now represented by:-
1/1 Chiranji Lal S/o Jagannath aged about 39 years,
1/2 Ramesh Chand S/o Jagannath
1/3 Punni Devi D/o Jagannath W/o Gouri Shankar
2. Ram Bhajan S/o Gordhan since deceased now represented by:
2/1 Bhagwan Sahai S/o Late Ram Bhajan R/o Thakur Pachewar, Ramganj
Bazar, jaipur
2/2 Smt. Rama Sharma D/o Late Ram Bhajan W/o Madan Lal, R/o House
No.638, Radha Kishan Mandir, Balaji Ka Rasta, Ramganj Bazar, Jaipur
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2/3 Smt. Gayatri D/o late Ram Bhajan, W/o Jugal Kishore Mahandi Bagh,
Malion Ka Gate, Near Shivji Ka Mandir, Tonk.
2/4 Smt. Sharda D/o Late Ram Bhajan W/o Ashok Kumar Mishra R/o
House No.III-92 ABC Colon, Bajaj Nagar, Jaipur
2/5. Smt. Savitri Sharma D/o Late Ram Bhajan, W/o Narender Dutt
Sharma R/o House No.992, Alwar Gate, Ajmer
----Respondents-defendants
3. Gordhan S/o Chetan Lal deceased now represented by
3/1 Satya Narain S/o Gordhan Lal
3/2 Lallu Lal S/o Gordhan Lal
3/3 Ratni Devi D/o Gordhan lal W/o Mali Ram Plot No.13/182, Kaveri Path,
Pani Ki Tanki, Chetan Marg, Mansarovar, Jaipur
3/4. Ram Ratan S/o Gordhan Lal, R/o Thakur Pachewar ka Rasta, Ramganj
Bazar, jaipur
4. Smt. Kapuri W/o Hari Ram Soni, R/o Lalji Sand ka Rasta, Haveli Kedal
Garh, Near Popular School, Chora Rasta, Jaipur (expired during the
pendency of appeal)(Deleted)
5. Smt. Kamla W/o Shri Radhey Shyam Soni R/o New Verma Prem Photo
Maker, Jawahar Gate, Amrawati (Maharastra) (expired during the
pendency of appeal) (Deleted)
---proforma Respondents
Connected With
S.B. Civil First Appeal No. 20/1991
1. Jagannath S/o Shri Gordhan since deceased now represented by:-
1/1 Chiranji Lal S/o Jagannath aged about 39 years,
1/2 Ramesh Chand S/o Jagannath
1/3 Punni Devi D/o Jagannath W/o Gouri Shankar
All residents of Rasta Thakur Pachewar, Ramganj Bazar, Jaipur
2. Ram Bhajan S/o Gordhan since deceased now represented by:
2/1 Bhagwan Sahai S/o Late Ram Bhajan R/o Thakur Pachewar,
Ramganj Bazar, jaipur
2/2 Smt. Rama Sharma D/o Late Ram Bhajan W/o Madan Lal, R/o
House No.638, Radha Kishan Mandir, Balaji Ka Rasta, Ramganj Bazar,
Jaipur
2/3 Smt. Gayatri D/o late Ram Bhajan, W/o Jugal Kishore Mahandi
Bagh, Malion Ka Gate, Near Shivji Ka Mandir, Tonk.
2/4 Smt. Sharda D/o Late Ram Bhajan W/o Ashok Kumar Mishra R/o
House No.III-92 ABC Colon, Bajaj Nagar, Jaipur
2/5. Smt. Savitri Sharma D/o Late Ram Bhajan, W/o Narender Dutt
Sharma R/o House No.992, Alwar Gate, Ajmer
----Appellants-defendants
Versus
1. Smt. Sampati Devi W/o Narsingh Lal (since deceased now been
represented through legal heirs.)
2. Puran Mal S/o Narsingh Lal since deceased now represented by:
2/1. Ratan Devi W/o Puran Mal.
2/2 Kamal Kishore S/o Puran Mal
2/3 Kailash S/o Puran Mal
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2/3/1 Ajay S/o Late kailash
2/3/2 Sanjay S/o Late Kailash
2/3/3 Nirmala D/o Late Kailash
2/4 Shankar Lal S/o Puran Mal
2/5 Prem D/o Puran Mal
2/6 Lali D/o Puran Mal
2/6/1 Anil
2/6/2 Sunil
2/7 Munni D/o Puran Mal
All resident of Rasta Thakur Pachewar, Ramganj Bazar, Jaipur
3. Gopal S/o Narsingh (Since deceased through his legal heirs)
3/1. Smt. Gyarsi Devi W/o Late Shri Gopal
4. Durga Prasad S/o Narsingh Lal
4/1 Rambabu S/o Late Durga Prasad
4/2 Lalita D/o Late Durga Prasad
5. Banwari S/o Narsingh Lal
5/1 Virendra S/o Late Banwari
5/2. Lakshmi W/o Late Bhanwari
6. Ramesh S/o Narsingh Lal
7. Radha Kishan S/o Narsingh lal
All residents of Thakur Pachewar ka Rasta, Ramganj Bazar, Jaipur
----Respondents-plaintiffs
8. Gordhan S/o Chetan Lal deceased now represented by
8/1 Satya Narain S/o Gordhan Lal
8/2 Lallu Lal S/o Gordhan Lal
8/3 Ratni Devi D/o Gordhan lal W/o Mali Ram Plot No.13/182, Kaveri
Path, Pani Ki Tanki, Chetan Marg, Mansarovar, Jaipur
8/4. Ram Ratan S/o Gordhan Lal, R/o Thakur Pachewar ka Rasta,
Ramganj Bazar, jaipur
9. Smt. Kapuri W/o Hari Ram Soni, R/o Lalji Sand ka Rasta, Haveli
Kedal Garh, Near Popular School, Chora Rasta, Jaipur (expired during
the pendency of appeal)(Deleted)
10. Smt. Kamla W/o Shri Radhey Shyam Soni R/o New Verma Prem
Photo Maker, Jawahar Gate, Amrawati (Maharastra) (expired during the
pendency of appeal) (Deleted)
------defendants-respondents
For Appellant(s) : Mr. Amit Jindal in CFA No.47/1991
Mr. Jitendra Mishra in CFA No.20/1991
For Respondent(s) : Mr. Jitendra Mishra in CFA No.47/1991
Mr. Amit Jindal in CFA No.20/1991
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Reserved on November, 11th 2022
Pronounced on January, 11th 2023
BY THE COURT
1. Both these first appeals have been filed under Section 96 CPC, assailing judgment and decree dated 10.10.1990 passed in Civil Suit No.91/1980 (92/1979) passed by the Court of Additional District Judge No.5, Jaipur City, Jaipur whereby and (Downloaded on 14/01/2023 at 12:33:49 AM) (4 of 23) [CFA-47/1991] whereunder civil suit for redemption of mortgaged property and in alternative, for partition and redemption of half of the mortgaged property as also for delivery of possession, filed by plaintiffs has been decreed and a preliminary decree has been passed against defendants No.1 and 2 to the effect that on making payment of half of the mortgage money of Rs.19,999/- and half of the amount incurred in improvement/repairing of the mortgaged property i.e. 19,722/- along with interest thereupon, plaintiffs will be entitled for possession of the half portion of the mortgaged property after partition of same and further, to commence the partition, the Commissioner has been ordered to be appointed.
2. Plaintiffs being legal representatives of one of the mortgagor have challenged the impugned judgment dated 10.10.1990 by way of filing Civil First Appeal No.47/1991 claiming that decree for redemption of mortgage should be passed in respect of whole of the mortgaged property, whereas on the contrary, defendants No.1 and 2, who are mortgagees, have challenged the impugned judgment dated 10.10.1990 by way of Civil First Appeal No.20/1991 basically on the ground that though they have admitted the execution of mortgage deed by them and their status as mortgagees in the suit property, nevertheless they have resisted a decree for redemption of mortgage even in respect of half portion of the mortgaged property, alleging, inter alia, that firstly the full (Downloaded on 14/01/2023 at 12:33:49 AM) (5 of 23) [CFA-47/1991] amount as incurred by them in improvement/repairing of the mortgaged property i.e. Rs.32,485/-, has not been ordered to be refunded and instead of only an amount of Rs.19,722/- has been ordered to be refunded. Secondly, defendants No.1 and 2 acquired right absolutely over the whole of mortgaged property, therefore, the suit for redemption of mortgage has wrongly been decreed.
3. Both first appeals are tagged and heard together and would stand decide by this common judgment.
4. Before proceeding to decide both first appeals on merits, at the outset it may be noticed that learned counsel for appellants-plaintiffs, as per instruction of appellants-plaintiffs stated at bar that in case defendants No.1 and 2 are agreeable to abide by the impugned judgment and decree dated 10.10.1990 and to not press their first appeal No.20/1991 thereagainst, plaintiffs are agreeable to not press their first appeal No.47/1991 on merits and would be satisfied with the impugned judgment and decree passed in respect of half portion of the mortgaged property and simultaneously to ensure the delivery of possession of half portion of the mortgaged property, preliminary decree for partition by metes and bounds to decide the suit properly in equal half and half share, has also been passed. In response to such proposal from the side of appellants-plaintiffs, learned counsel appearing for appellants-defendants No.1 and 2 (now their (Downloaded on 14/01/2023 at 12:33:49 AM) (6 of 23) [CFA-47/1991] legal representatives) stated at bar, on instructions of their clients that they want to press their first appeal No.20/1991 on merits as their clients are not agreeable for partition of the mortgaged property and to deliver half of portion of mortgaged property to plaintiffs, in compliance of the impugned decree for redemption dated 10.10.1990 passed in favour of plaintiffs, therefore, this Court has no other option except to proceed further and to consider and decide both first appeals on merits.
5. Heard counsel for both parties and perused the impugned judgment as also entire record thoroughly.
6. It is necessary to notice factual aspect of appeals as culled out from the record and in brief, it is a case where the dispute is in respect of a Haveli having three storied building situated in Thakur Pachewar Ka Rasta at Jaipur. This Haveli was joint and undivided property of two brothers namely Nar Singh Lal and Gordhan Lal, who jointly mortgaged this Haveli with possession in favour of defendants No.1 and 2 namely Jagannath and Ram Bhajan, who were also real brothers, against mortgage money of Rs.19,999/- w.e.f. 21.10.1948 and a registered mortgage deed was executed on 6.11.1948 (Ex-
1). The possession of Haveli was handed over to defendants No.1 and 2 and it was the agreed terms and conditions of mortgage that mortgage money of Rs.19,999/- will not carry any interest and no rent would be payable by mortgagees to (Downloaded on 14/01/2023 at 12:33:49 AM) (7 of 23) [CFA-47/1991] enjoy the possession of mortgaged property. It was also agreed that mortgagees (defendants No.1 and 2), would be entitled to carry out repairing work in the Haveli and the amount incurred in the repairing work would be refundable by mortgagors along with interest at the rate of 1% per month, apart from the repayment of mortgage money of Rs.19,999/-, at the time of redemption of mortgage. Separate document to pay the interest at the rate of 1% per month on the amount incurred on repairing of the mortgaged property was executed on 4.11.1948 (Ex-A/1), separately to the execution of mortgage deed dated 6.11.1948 (Ex-1). It is not in dispute that the period of mortgage was fixed for 15 years commencing w.e.f. 21.10.1948.
7. Out of two brothers i.e. Nar Singh Lal and Gordhan Lal, who were mortgagors, since one of the mortgagor Nar Singh Lal has expired on 19.1.1975, his widow and sons jointly instituted the present civil suit for redemption of the mortgaged property on 13.10.1978. In this civil suit, both mortgagees i.e. Jagannath and Ram Bhajan were not party as defendants No.1 and 2 and another mortgagor who is Gordhan Lal was made party as defendant No.3. Later on, two daughters of deceased mortgagor Nar Singh Lal namely Kapuri and Kamla were also made party as defendants No.4 and 5. After filing of suit on 13.10.1978, few of parties passed away and therefore, the suit was amended time to time. (Downloaded on 14/01/2023 at 12:33:49 AM)
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8. In the original suit filed for redemption of mortgage and delivery of possession, apart from the pleading in respect of the execution of mortgage deed dated 6.11.1948 (Ex-1) with delivery of possession, in favour of defendants No.1 and 2 against the mortgage money of Rs.19,999/- w.e.f. 21.10.1948, reference of following four civil suits were given to the following effect:
(i) Civil Suit No.50/2005, instituted on 18.10.1948 titled as Ramvilas @ Sundilal Vs. Gordhan Lal. This suit was instituted by one Ramvilas against the another mortgagor Gordhan Lal and was decreed against him and in execution of decree, half portion of co-mortgagor Gordhan Lal was attached and auctioned and same was alleged to be purchased by one of the co-mortgagee who is defendant No.2- Ram Bhajan.
(ii) Civil Suit No.378/2005 titled as Jagannath & Ram Bhajan Vs Gordhan Lal & Nar Singh Lal was separately filed by both mortgagees against both mortgagors and same was decreed, when decree was put for execution, it was requested that the auction price received out of the sale of the portion of Gordhan Lal in execution of the decree of Civil Suit No.50/2005 in favour of one Ramvilas, may be rateably distributed and accordingly, the Civil Judge, Jaipur City passed an order dated 12.1.1951 allowing to distribute the sale price of the auction of portion of Gordhan Lal, rateably.
(iii) Civil Suit No.175/1950, instituted on 11.4.1950 titled Phoolchand Vs Gordhan Lal, which was filed by one another person Phoolchand against the co-(Downloaded on 14/01/2023 at 12:33:49 AM)
(9 of 23) [CFA-47/1991] mortgagor Gordhan Lal was also decreed and when this decree against co-mortgagor Gordhan Lal was put in execution by the decree holder Phoolchand.
Again the share of Gordhan Lal was put to auction, which had already been sold in the auction in execution of decree in favour of other decree holder Ramvilas, however, in this auction, the portion of co- mortgagor Gordhan Lal was purchased by defendants No.1 and 2 who are the mortgagees, jointly.
(iv) An independent and separate Civil Suit No.384/1954 before the Civil Court (East), Jaipur was filed by one Suraj Mal against one of the mortgagor Nar Singh Lal impleading him as defendant No.1 and against both mortgagees Jagannath and Ram Bhajan impleading other as defendants No.2 and 3. This civil suit for declaration was filed by Suraj Mal, for the reason that he had a decree for recovery of Rs.941/- against one of the mortgagor Nar Singh Lal and when in execution of such decree, the portion of Nar Singh Lal in the Haveli in question was attached, both the mortgagees it means Jagannath and Ram Bhajan took an objection to detach the portion of Nar Singh Lal, alleging, inter alia, that his portion has also come under the sale as per the principle of equity of redemption, when the Court has passed an order dated 12.1.1951, to distribute the sale price of auction of the portion of Gordhan Lal rateably, during the course of execution of decree of their suit jointly decreed against Gordhan Lal and Nar Singh Lal. On such objection, the portion of Nar Singh Lal attached in execution of the decree passed in favour of Suraj Mal was released, therefore, Suraj Mal instituted this fresh civil suit No.384/1954 for declaration. This civil suit for declaration was decreed vide judgment dated (Downloaded on 14/01/2023 at 12:33:49 AM) (10 of 23) [CFA-47/1991] 22.5.1957 and it has been declared that the half portion of Nar Singh Lal in Haveli was never auctioned nor is affected by the principle of equity of redemption and, Jagannath and Ram Bhajan (who were defendants No.2 and 3 in that suit) have no right over the half portion of Nar Singh Lal. This judgment and decree dated 22.5.1957 (Ex-12), was challenged by Jagannath and Ram Bhajan by way of filing civil regular appeal No.63/1957 and same, has been dismissed on merits vide judgment dated 9.10.1958 (Ex-13) where it has clearly been concluded that the share of Nar Singh Lal in the Haveli in question was never auctioned and when the share of Nar Singh Lal was not auctioned, the mere getting of the amount in rateably distribution of the auctioned property of the another mortgagor Gordhan Lal, does not make any difference and thus, it cannot be said that the property of Nar Singh Lal was ever sold in favour of Jagannath and Ram Bhajan.
9. Giving reference of the aforementioned four judgements, it has been pleaded by plaintiffs in the suit that half portion of Nar Singh Lal was never auctioned in pursuance to the decree passed in favour of Suraj Mal as declared in Civil Suit No.384/1954 vide judgment dated 22.5.1957 and further it has already been declared that the half portion of Nar Singh Lal was never auctioned in favour of mortgagees i.e. Jagannath and Ram Bhajan pursuant to decree in their favour, therefore, it was pleaded that at least half portion of mortgaged property belonging to Nar Singh Lal is liable to be redeemed from mortgage and plaintiffs being legal (Downloaded on 14/01/2023 at 12:33:49 AM) (11 of 23) [CFA-47/1991] representatives of deceased mortgagor Nar Singh Lal are entitled for redemption of mortgage and possession of property. Here it may be noticed that although, in para No.7 of the suit, plaintiffs claimed their right of redemption in respect of portion of their predecessor Nar Singh Lal nevertheless in later part of pleadings, they claimed that whole mortgaged property be ordered to be redeemed and also made such a prayer but, simultaneously an alternative prayer was also made in the suit that in case, plaintiffs are held entitled for redemption of mortgage in respect of half of the mortgaged property, then on making payment of the half of mortgage money, possession of half portion of the suit property be ordered to be delivered to plaintiffs after making division of the suit property. Therefore, it may be noticed here that in the suit itself, plaintiffs have made a prayer seeking redemption of half of the mortgaged property by way of seeking partition of the suit property to ensure the delivery of possession of half portion.
10. Both mortgagees-defendants No.1 and 2 have jointly filed written statement and resisted the present suit. In their written statement, defendants No.1 and 2 have not disputed the execution of mortgage deed dated 6.11.1948 (Ex-1) as also obtaining the possession of suit property as mortgagees. As far as the reference of four civil suits as made by plaintiffs in the suit have also not been disputed. Defendants No.1 and 2 unequivocally claims that as far as half portion of the co- (Downloaded on 14/01/2023 at 12:33:49 AM)
(12 of 23) [CFA-47/1991] mortgagor Gordhan Lal is concerned, same have been purchased by them in auction of the decree passed against him in Civil Suit No.50/2005 in favour of Ramvilas (Ex.2, 3, 4 and 5) and later on in execution of decree of suit No.175/1950 passed in favour of Phoolchand (Ex-6 and 7). However, it has been contended that in execution of joint decree passed against both mortgagors i.e. Gordhan Lal and Nar Singh Lal, in their favour, Parvana Neelaam was issued by the Civil Court in their favour and as such the suit property is not liable to be redeemed. In addition to such defence, it has also been pleaded by defendants that they had incurred huge amount as detailed out in schedule-A, in making repairing work in the mortgaged property, therefore, they are entitled to receive the amount of repairing with interest at the rate of 1% per month apart from the mortgage money.
11. It is important to notice here that while resisting the suit as a whole, defendants No.1 and 2 in para No.7 as well as to special please stated in their written statement filed on 20.2.1979 have admitted the suit for declaration, filed by Suraj Mal was decreed in favour of Suraj Mal vide judgment dated 22.7.1957 and thereagainst they filed Civil Regular First Appeal No.63/1957 which has been dismissed vide judgment dated 9.10.1958. Thus, in view of such judgment and decree, defendants have contended that at least it is not in dispute that half portion of the co-mortgagor Gordhan Lal have been purchased by them and thus, the suit for redemption in (Downloaded on 14/01/2023 at 12:33:49 AM) (13 of 23) [CFA-47/1991] respect of portion of Gordhan Lal is not liable to be decreed. Lastly, in the written statement, defendants have contended that unless the partition of the suit property is not effected, plaintiffs' suit for redemption of mortgage in respect of half of the portion belonging to their predecessor mortgagor- Nar Singh Lal is not liable to be decreed.
Thus, from perusal of pleadings of written statement of defendants No.1 and 2, it appears that in low tone, defendants No.1 and 2 only resisted the suit for redemption of mortgage in respect of the half portion of suit property belonging to co- mortgagor Gordhan Lal which has been purchased by them in auction, against the execution of decree passed against co- mortgagor Gordhan Lal and they claimed refund of the amount incurred by them in repairing of mortgaged property, along with interest, in case, the suit for redemption in respect of half of the mortgaged property belonging to Nar Singh Lal, is decreed but after partition only.
12. It may be noticed that defendant No.3 Gordhan Lal who is co-mortgagor also submitted his separate written statement. In his written statement, he did not dispute that in execution of the decree passed against him, his half portion in the Haveli in question was attached and has been auctioned, which has been purchased by mortgagees-defendants No.1 and 2 but he states that mortgagees purchased their portion in very low sale price and their such action is against the principle of redemption of mortgage, therefore, he prayed that (Downloaded on 14/01/2023 at 12:33:49 AM) (14 of 23) [CFA-47/1991] on payment of that sale price to mortgagees, the portion of Gordhan Lal be also ordered to be redeemed.
13. On the basis of rival pleadings of both parties, since parties were not in dispute in respect of execution of mortgage deed, only four issues were framed which are as follows:
First, whether at the time of mortgage the Haveli in question was in need of repair which was to be done by defendants No.1 and 2 on the condition to refund the amount incurred in repairing along with interest at the time of redemption of mortgage?
Second, whether defendants No.1 and 2 are entitled to receive the amount of repairing and other expenses made in the Haveli along with interest @1% per month?
Third, whether plaintiffs are entitled to get redeem the whole Haveli in question as detailed in para No.8 of the plaint?
Fourth, whether defendants No.1 and 2 constructed three tin posh rooms spending Rs.983/-, and they are entitled to receive same at the time of partition? Fifth, Relief?
14. Plaintiffs examined Pw-1 Gopal Kant and exhibited 16 documents. Defendants examined Dw-1 Jagannath Dw-2 Ganga Sahai and Dw-3 Kalyan and exhibited 18 documents.
15. The trial Court considered oral and documentary evidence led by both parties. Issues No.1 and 2 are in respect of claim of repairing amount, incurred by mortgagees defendants No.1 and 2 in the suit property and rate of interest to claim such amount. In respect of both issues, the trial has decided that defendants No.1 and 2 incurred an amount of Rs.19,722/- and interest at the rate of 1% per month is payable by mortgagees on the repairing amount. (Downloaded on 14/01/2023 at 12:33:49 AM)
(15 of 23) [CFA-47/1991] Issue no.4 is in respect of claiming amount of improvement, alleged to be made by mortgagees but issue No.4 was not pressed by defendants before the trial Court itself, hence, the same was decided against them accordingly. In respect of issue No.3, the trial Court has decided that plaintiffs are entitled for redemption of mortgage of the suit property in respect of half portion, belonging to their predecessor Nar Singh Lal, thus, issue No.3 has been decided by the trial Court equitably partially in favour of plaintiff and partially in favour of defendants No.1 and 2. It has been observed that half portion of the mortgaged property belonging to the co-mortgagor Gordhan Lal had been purchased by mortgagees defendants No.1 and 2 and hence, they are entitled to retain possession of half portion and this portion is not liable to be redeemed. Consequently, the suit for redemption of mortgage has been decreed in respect of only half portion of the suit property belonging to Nar Singh Lal and simultaneously preliminary decree for partition of the suit property has also been passed, to decide the suit property in equal half-half share by metes and bounds. Therefore, the consequence of the impugned decree is that after division of the property by metes and bounds in half and half share, the possession of half of the property is to be delivered by defendants No.1 and 2 to plaintiffs.
16. Having noticed the factual matrix and evidence of parties on record, there is no dispute that the suit property was joint property of two brothers namely Nar Singh Lal and Gordhan Lal sons of Chetan Lal. It is not in dispute that the suit property was jointly mortgaged by both brothers and possession was delivered to defendants No.1 and 2 as mortgagees, against mortgage money of (Downloaded on 14/01/2023 at 12:33:49 AM) (16 of 23) [CFA-47/1991] Rs.19,999/- and mortgage deed dated 6.11.1948 (Ex-1) was executed and registered in conformity of mortgage w.e.f. 21.10.1948. It is not in dispute that as far as portion in Haveli belonging to co-owner/mortgagor Gordhan Lal was attached and auctioned in execution of the decree, passed in favour of one Ramvilas in Civil Suit No.50/2005, again in execution of decree passed in favour of Phoolchand in Civil Suit No.175/1950 and that portion has been purchased by defendants No.1 and 2 mortgagees. Thus, it is obvious and undisputed that defendants No.1 and 2 mortgagees have acquired ownership rights as far as in respect of portion belonging to mortgagor Gordhan Lal in the Haveli in question. It is true that defendants No.1 and 2, also had a joint decree for recovery for money against both mortgagors it means Nar Singh Lal and Gordhan Lal, nevertheless, that decree was ordered to be satisfied by passing an order dated 12.1.1951 by the City Civil Court, Jaipur allowing rateably distribution of the sale price, received out of auction of the portion of Gordhan Lal in execution of the decree passed in Civil Suit No.50/2005 in favour of one Ramvilas. It is further not in dispute between parties that in the Civil Suit No.384/1954 filed by one Suraj Mal, against one of the mortgagor Nar Singh Lal and other two mortgagees Jagannath and Ram Bhajan impleading them as defendants No.1, 2 and 3, a decree for declaration dated 22.7.1957 (Ex-12) has been passed by the Court of Munsif, Jaipur (East). In this judgment, it has clearly been declared that the half portion of co-mortgagor Nar Singh Lal in the Haveli in question, was neither attached nor auctioned and merely getting of an amount in rateably distribution of the sale price received against auction of the portion of another co- (Downloaded on 14/01/2023 at 12:33:49 AM)
(17 of 23) [CFA-47/1991] mortgagor Gordhan Lal, mortgagees Jagannath and Ram Bhajan defendants No.2 and 3 in that suit, do not get any right under equity of redemption against the share of Nar Singh Lal vide judgment dated 22.7.1957. The half portion of Nar Singh Lal in the mortgaged property was declared to be attached against the decree passed in favour of Suraj Mal and thereagainst, no right whatsoever of mortgagees defendants No.2 and 3 therein i.e. Jagannath and Ram Bhajan was found arisen. It is undisputed that both mortgagees Jagannath and Ram Bhajan, challenged the judgment and decree dated 22.7.1957 by way of filing Civil Regular Appeal No.63/1957 and their appeal has been dismissed on merits vide judgment dated 9.10.1958 (Ex-13). The judgment dated 9.10.1958 has attained finality and according to such judgment, mortgagees who are defendants No.1 and 2 in the present suit do not have any right other than being mortgagee as far as in respect of portion in the Haveli belonging to mortgagor Nar Singh Lal is concerned. Thus, defendants No.1 and 2 in light of judgment and decree dated 22.7.1957 (Ex-12) and dismissal of their first appeal thereagainst vide judgment dated 9.10.1958 (Ex-13) are not entitled to resist the redemption of mortgage of the suit property in respect of portion belonging to Nar Singh Lal except to claim the mortgaged money, amount incurred in repairing of the mortgaged property and interest thereupon.
17. Section 60 of the Transfer of Property Act, 1882 deals with the right of mortgagor to redeem and such provision envisages that the redemption of portion of the mortgage property is permissible, if mortgagee(s) has/have acquired interest in the whole or part of (Downloaded on 14/01/2023 at 12:33:49 AM) (18 of 23) [CFA-47/1991] the mortgagor. The relevant portion of Section 60 is extracted hereunder:
"Redemption of protion of mortgaged property.- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of mortgagor."
18. In the present case, as per facts discussed hereinabove, it is undisputed that the suit property was joint property of two brothers Nar Singh Lal and Gordhan Lal who jointly mortgage the suit property. As far as portion belonging to Gordhan Lal in the suit property is concerned, has undeniably been purchased by mortgagees it means defendants No.1 and 2. Co-mortgagor Gordhan Lal has not instituted any suit for redemption of his portion and though he submitted his written statement being defendant No.3, in the present suit but neither he appeared in evidence nor pressed his claim for redemption of his portion in the suit property from mortgage. Since in respect of the portion of mortgaged property belonging to Gordhan Lal, defendants No.1 and 2 have acquired their ownership rights after the mortgage, obviously legal representatives of deceased mortgagor Nar Singh Lal, may not claim any right over the portion in the suit property belonging to Gordhan Lal. Plaintiffs, being legal representatives of one of the co-mortgagor Nar Singh Lal, have alternatively made a prayer in the suit itself that in case they are found entitled for redemption of half portion of the property belonging to Nar Singh Lal, the suit may be decreed accordingly and prayer for partition (Downloaded on 14/01/2023 at 12:33:49 AM) (19 of 23) [CFA-47/1991] has also been made. As far as resistance of the suit for redemption of mortgage in respect of the portion belonging to Nar Singh Lal is concerned, defendants No.1 and 2 have no case having been faced with the judgment and decree dated 22.7.1957 passed against them in Civil Suit No.384/1954 filed by Suraj Mal Vs. Nar Singh Lal, Jagannath and Ram Bhajan, which has been affirmed in first appeal No.63/1957 filed by them vide judgment dated 9.10.1958 (Ex-13). It is not in dispute as pleaded by plaintiffs that the half portion belonging to Nar Singh Lal in the suit property was never auctioned pursuant to judgment and decree dated 22.7.1957 in favour of Suraj Mal.
19. In order to claim for the redemption of mortgage of the suit property in respect of half portion belonging to Nar Singh Lal, plaintiffs have made a prayer for partition of the suit property. It cannot be disputed that a prayer for partition, while seeking a prayer for redemption of mortgage in respect of portion of suit property, is maintainable and consolidated civil suit, making a joint prayer for partition, in order to ensure the compliance of decree for redemption of mortgage in respect of portion of mortgaged property is nowhere prohibited in law and the trial Court is well within its jurisdiction to pass a preliminary decree for partition of the suit property, while holding plaintiffs entitled for redemption of suit property in respect of half portion belonging to Nar Singh Lal. Such proposition of law stands fortified by the Supreme Court in case of Krishna Pillai Rajasekharan Nair (D) by LRs. Vs Padmanabha Pillai (D) by LRs. [(2004) 12 SCC 754]. The relevant para No.10 of the judgment reads as under: (Downloaded on 14/01/2023 at 12:33:49 AM)
(20 of 23) [CFA-47/1991] "10. In Ganeshi Lal V. Joti Pershad [AIR 1953 SC 1] case two plaintiffs sued for partition and possession of their two-fifths share in the suit properties alleging that the first defendant was alone in possession of the same, having redeemed the mortgage executed by the joint family of which the plaintiffs and defendants were members. On the date of the Trial Court's decree the two plaintiffs were held entitled to one-sixth share each. The findings of fact arrived at by the Trial Court and the High Court were that the original mortgage was a mortgage transaction of the joint family and that the defendant 1 prima facie had redeemed the mortgage on his own account and for his own benefit at a time when there was no longer any joint family in existence. The plaintiffs were held entitled to their share in the property subject to payment of their proportionate share of the amount paid by the defendant 1 to redeem the mortgage. The contention of the defendant 1 that a suit for partition and possession was not maintainable without bringing a suit for redemption was repelled. One of the pleas urged before this Court was that the suit for partition without asking for redemption was not maintainable. This Court held that the original mortgagee had not assigned his rights in the mortgage to the defendant 1. So long as the question of limitation was not involved, there was no objection to a claim for redemption and one for possession and partition being joined together in the same suit. The principal issue to which this Court addressed was that though Ganeshi Lal, the defendant 1 had redeemed the prior mortgage and stood subrogated to the mortgagee's rights but the real question was about the extent of his rights as subrogee."
20. For the discussion made hereinabove, this Court is of the considered opinion that the learned trial Court has not committed illegality, perversity or jurisdictional error in decreeing the suit in favour of plaintiffs in respect of suit for redemption of mortgage in respect of portion belonging to Nar Singh Lal, the co-mortgagor, predecessor of plaintiffs and allowing partition of the suit property by issuing a preliminary decree for partition, that too on making payment of the half share of mortgage money as much as half (Downloaded on 14/01/2023 at 12:33:49 AM) (21 of 23) [CFA-47/1991] share of the amount incurred by the mortgagees defendants No.1 and 2 in repairing of the mortgaged property along with interest payable thereupon as agreed between parties. Therefore, the finding and decision on issue No.3 is just and proper, as such same is hereby affirmed.
21. Plaintiffs have not challenged findings of issues No.1 and 2. As far as challenge to findings in respect of issues No.1 and 2, by defendants No.1 and 2 is concerned, to the extent of claiming amount of Rs.32,485/- by defendants No.1 and 2, claiming the refund of said amount on account of repairs made by them in the mortgaged property, the trial Court has decreed an amount of Rs.19,722/-. The trial Court has concluded that mortgagors agreed to pay interest at the rate of 1% per month on the amount incurred by mortgagees in carrying out repairing work in the mortgaged property, on the basis of document executed on stamp paper dated 4.11.1948 (Ex-A/1) and such finding has not been disputed by counsel for plaintiffs. As far as determining the amount incurred by defendants No.1 and 2 on repairing of the mortgaged property is concerned, the trial Court has analysed the oral and documentary evidence. The claim of repairing amount made by defendants No.1 and 2 as made in Parishist-A enclosed with the written statement, has not been found proved. The actual amount incurred in repairing proved by documents (Ex-A6 to A13) have been calculated, whereas the amount incurred, in obtaining permission from Nagar Parishad and penalty amount and the electricity and water charges of post period to filing of present suit have not been decreed. The trial Court apart from taking into consideration documents has also relied upon statements of DW2 and DW3. The receipts, dated (Downloaded on 14/01/2023 at 12:33:49 AM) (22 of 23) [CFA-47/1991] 26.2.1952 for Rs.2401/- (Ex-A7), dated 17.3.1953 for Rs.9742/- (Ex-A8), dated 31.11.1958 for Rs.1851 (Ex-9) have been considered. The charges of electricity bills for the year 1979 (Ex-14 and 15) which is of post period and other charges which are unexplained and not found having nexus with the repairing work have been declined. Learned counsel appearing for defendants No.1 and 2, is unable to justify the whole claim of Rs.32,485/- as detailed out in Parishist-A with the written statement. Therefore, in absence of sufficient evidence, and without substantiating the entire amount of Rs.32,485/-, this Court finds that the trial Court has not committed any illegality in determining an amount of Rs.19,722/-, as incurred by defendants No.1 and 2 in repairing of the suit property. Thus, fact findings of the trial Court in respect of issues No.1 and 2 are hereby affirmed and no interference is called for therein.
22. Having discussed the factual and legal aspect hereinabove, this Court is of the considered opinion that judgment and decree dated 10.10.1990 passed by the trial Court is lawful, just and proper. When it is undisputed that the suit property was joint property of two brothers i.e. Nar Singh Lal and Gordhan Lal who mortgaged this property to defendants No.1 and 2 and thereafter, defendants No.1 and 2 have purchased the half portion of the suit property belonging to Gordhan Lal in execution of decree passed against him and have acquired ownership right for the half portion of Gordhan Lal but do not have acquired any right or interest as against the half portion belonging to Nar Singh Lal is concerned, except to claim his mortgage money and amount of repairing with interest. Further defendants No.1 and 2 in their written statement (Downloaded on 14/01/2023 at 12:33:49 AM) (23 of 23) [CFA-47/1991] itself resisted the redemption of mortgage of whole property and have not shown any sufficient reason to resist the redemption of the suit property, in respect of portion belonging to mortgagor Nar Singh Lal, the trial Court has not committed any illegality in passing a decree for redemption on repayment of mortgage money in respect of the half portion of the mortgagor Nar Singh Lal, in favour of his legal representatives and simultaneously preliminary decree for partition of the suit property as prayed for, has also been passed, on condition of making payment of the half mortgage money and half amount of repairing amount along with interest as to be calculated by defendants No.1 and 2. Thus, in the opinion of this Court, the impugned judgment and decree is liable to be affirmed as it is.
23. No other point except discussed hereinabove has been argued before this Court.
24. This Court finds that both first appeals, challenging the judgment and decree dated 10.10.1990 are unwarranted and have been filed in misuse of process of law and since both appeals are devoid of merits and as such same are hereby dismissed.
25. Parties are left to bear their own costs.
26. Record of the trial Court be sent back forthwith in order to proceed with the preparation of final decree for partition as also for redemption of mortgage, as ordered in the impugned judgment.
27. Stay applications and other pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J NITIN / (Downloaded on 14/01/2023 at 12:33:49 AM) Powered by TCPDF (www.tcpdf.org)