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Mst. Nathi and ors. Vs. Shanker and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil 2nd Appeal No. 144 of 1967
Judge
Reported in1975(8)WLN330
AppellantMst. Nathi and ors.
RespondentShanker and ors.
DispositionAppeal dismissed
Excerpt:
.....dated 28.7.66. the plaintiff-mortgagors have now come up in second appeal. in the previous suit, a decree for foreclosure was passed against dhanraj as he failed to deposit the mortgage money found due to the mortgagees since the foreclosure decree was against dhanraj alone, its effect was to destroy the right of redemption of dhanraj to the extent of his share and not to destroy the right of other co-mortgagor or co-mortgagors in respect of his or their shares in the mortgaged property this view of the matter, it cannot he said that the foreclosure decree passed against dhanraj debarred the plaintiff mortgagors from redeeming 'he property to the extent of their own share. the courts below were therefore perfectly justified in decreeing the suit for redemption to the extent of..........in the previous suit in the circumstances cannot be held binding on the plaintiff. in the previous suit, a decree for foreclosure was passed against dhanraj as he failed to deposit the mortgage money found due to the mortgagees since the foreclosure decree was against dhanraj alone, its effect was to destroy the right of redemption of dhanraj to the extent of his share and not to destroy the right of other co-mortgagor or co-mortgagors in respect of his or their shares in the mortgaged property this view of the matter, it cannot he said that the foreclosure decree passed against dhanraj debarred the plaintiff mortgagors from redeeming 'he property to the extent of their own share. the courts below were therefore perfectly justified in decreeing the suit for redemption to the extent of.....
Judgment:

S.N. Modi, J.

1. This is a civil second appeal in a suit for redemption of a house described in para 2 (ch) of the plaint.

2. The relevent facts giving rise to this appeal may briefly be stated thus. On 27 11.14 Jasraj and his son Sardarmal mortgaged the house is dispute for Rs. 152/- to Navla and Dhanna. It was a usufructuary mortgage. On 12 1 27 Chunilal, his son Sukbdeo and Shanker purchased the mortgage rights from Navla and Dhanna, It appears that after the death of jasraj and Sardarmal, Dhanraj (defendant No. 6 in the present suit) brought a suit for redemption of the mortgage against Shanker and the legal representatives of Sukhdeo and Chunnilal who are defendants Nos. 1 to 5 in the present suit, In that suit, Sardarmal's another son Hastimal or his legal representatives, namely, the plaintiffs, were not impleaded as parties to the suit, The suit filed by Dhanraj was decreed and he was ordered to redeem the mortgage by depositing mortgage money amounting to Rs. 151/- and Rs. 200/ by way of expenses for repairs and improvements total Rs. 351/-, within three months from the date of the decree, that is, 6.1.48. Dhanraj failed to deposit the said amount with the result that the mortgagees moved an application to the court for passing a final decree for foreclosure in their favour, This application was allowed and a final decree for foreclosure debarring Dhanraj from redeeming the mortgage was passed in favour of the mortgagees on 6.4.48. On 7.10.63 the plaintiff-appellants who are the heirs of Hastimal son of Sardarmal brought the present suit for redemption of mortgage against the mortgage defendants Nos. 1 to 5 and also impleaded Dhanraj as defendant No. 6. The suit was contested on the ground intetalia that no right of redemption subsisted in the plaintiff-mortgagors as the mortgagees in the suit filed by Dhanraj had obtained a decree for foreclosure. The learned trial Judge negatived this contention holding that since the plaintiffs were not parties to the previous suit, they were not bound by the judgment in that suit. The learned Judge further held that the plaintiffs had half share in the mortgaged property and since the decree for foreclosure was passed against Dhanraj the latter's right to redeem to the extent of his half share in the property was extinguished. The trial court in the result decreed the suit for redemption of half share in the house on payment of half the mortgage money i.e. Rs. 75.50 P. and half of the cost of the improvement i.e. Rs. 150/- total Rs. 225 50 P Aggrieved by the said decree, the plaintiff-mortgagors as well as the defendant mortgagees preferred separate appeals which were dismissed by the learned Senior Civil Judge, Udaipur, by his judgment dated 28.7.66. The plaintiff-mortgagors have now come up in second appeal.

3. I have heard Mr. Porwal on behalf of the appellants and Mr. Dalveer Bhandari on behalf of the respondents. Mr Porwal urged before me two points. Firstly, that the plaintiffs were entitled to redeem the entire mortgaged property and not half share in the property. His second contention is that there exists no proof on the record that plaintiffs and Dhanraj had equal shares in the mortgaged house None of these contentions has any merits. It is not in dispute that the previous suit for redemption was filed by Dhanraj and none of the plaintiffs or their predecessors-in-interest was made a party to that suit. The judgment in the previous suit in the circumstances cannot be held binding on the plaintiff. In the previous suit, a decree for foreclosure was passed against Dhanraj as he failed to deposit the mortgage money found due to the mortgagees Since the foreclosure decree was against Dhanraj alone, its effect was to destroy the right of redemption of Dhanraj to the extent of his share and not to destroy the right of other co-mortgagor or co-mortgagors in respect of his or their shares in the mortgaged property this view of the matter, it cannot he said that the foreclosure decree passed against Dhanraj debarred the plaintiff mortgagors from redeeming 'he property to the extent of their own share. The courts below were therefore perfectly justified in decreeing the suit for redemption to the extent of half share of the plaintiff-mortgagors in the mortgaged property.

4. Coming to the second point raised by Mr. Porwal, suffice to say that be was unable to point out any evidence showing that the plaintiff have more than half share in the mortgaged property. There is no dispute that the mortgaged property originally belonged to Jasraj who died leaving two sons Sardarmal and Seshmal. Seshmal died issueless. Sardarmal died leaving two sons Hastimal and Dhanraj. The plaintiffs are the heirs of Hastimal and Dhanraj is the defendant No. 6 In view of the above it cannot be said that the plaintiff's had more than half share in the mortgaged property. In spite of all this evidence, I gave further time to Mr. Porwal to contact his clients and find out if the plaintiffs had more than half share in the mortgaged house but he was unable to throw any light on this point before me. No other point has been urged.

5. The appeal fails and it is hereby dismissed with costs.

6. Learned Counsel for the appellants prays for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949. I do not consider it to be a fit case for granting leave to appeal. Leave is refused'


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