Jagan Nath vs Smt.Sampati Devi
2023 Latest Caselaw 328 Raj/2

         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

(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

(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

(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

(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.

(8 of 23) [CFA-47/1991]

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-

(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

(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

(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-

(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

(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

(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.

(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

(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-

(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

(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

(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:

(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

(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

(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

(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 /

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