1. This is an appeal against the judgment and decree of the Subordinate Judge, Civil Station, Bangalore, in B.A. No. 57/49-50 confirming those of the First Munsiff, Bangalore, in O.S. No. 178 of 47-48.
2. The appellant was the plaintiff in the case. He filed a suit for redemption of the property mortgaged by his mother as his guardian for a sum of Rs. 2500/-. Out of this sum, it is not disputed, a sum of Rs. 700/- was paid for discharging the prior encumbrances created by the plaintiff's deceased father and a sum of Rs. 181/-was required for meeting funeral expenses of his deceased father. Plaintiff admits that there was legal necessity to this extent. Out of the balance of about Rs. 1619/- plaintiff's mother purchased a house for a sum of Rs. 1500/- and it is contended that even this house has been subsequently sold away for Rs. 3500/- and that the plaintiff is not liable to pay anything more than what was required for the funeral expenses and to discharge the debts contracted by his father. It has, however, to be remembered that under the Will executed by the deceased father of the plaintiff the debts had to be discharged and moreover it was necessary to meet the funeral expenses of the deceased. It is contended that it was open to the mother to have executed a usufructuary mortgage for a sum of Rs. 1000/- only and it was not necessary for her to have mortgaged the property for Rs. 2500/-. A little reflection will show that what the mother did was much more beneficial to the minor, as otherwise, by paying only a sum of Rs. 1000/- the respondent would have been in possession of the house, under this arrangement the mother purchased a house and her act was prudent as it later on fetched more than double the amount she had paid. On the whole the act of the plaintiff's mother is prudent and is for the benefit of the minor. The lower Courts were therefore right in coming to this conclusion.
3. The respondent claimed a sum of Rs. 159-8-6 on the ground that she spent that amount for repairing the house. There is no independent evidence to support this, and the appeal has to be allowed to the extent of disallowing this amount.
4. There is one other matter in respect of which the decrees of the lower Courts have to be modified. According to the decrees of the lower Courts, the mortgagor forfeits the right of redeeming the property in case he does not deposit the amount due by him for redemption within the time fixed by the Courts. Order 34, Rule (7)(c)(ii) a and b Civil P.C. contemplates a forfeiture of the right to redeem in some cases other than the cases of usufructuary mortgage and the clauses read:
'(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or
(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property.'
But, as has been laid down in -- 'Mahomed Azim v. Md. Sultan', AIR 1946 Pat 99 (A), a preliminary decree in a suit for redemption of a usufructuary mortgage may, under Clause (c) (i) of Rule 7 (1) of Order 34, Civil P.C., 1908, fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff-mortgagor from all right to redeem the mortgaged property.
5. In the result, the decrees of the lower Courts are modified by deleting the direction that the rights of the plaintiff are forfeited in case the amount is not deposited within three months' time. The parties will bear their own costs in this appeal.
6. Order accordingly.