C.M. Lodha, J.
1: The above three appeals asises out of suit No. 348 of 1964 instituted in the Court of Munsiff-Magistrate, Jaipur City (East). Jaipur by Lachhiram against Hari Narain, Shrinarain and Mohinuddin for redemption of shop situated at Moti-Dungari Road in the city of Jaipur. Since all these appeals are directed against the judgment of the Additional District Judge No. 2, Jaipur City, it would be convenient to dipose them by a common judgment.
2. The property in dispute belonged to Lachhiram, who mortgaged the same in favour of defendant No. 1, Hari Narain on 20-4-1956 by a registered mortgage deed for a consideration of Rs. 451/-. The possession of the shop was admittedly handed over to the mortgagees at the time of mortgage. It is alleged by the plaintiff that he gave a notice to the defendant No. 1, dated 31-12-1963 to redeem the mortgage but the defendant No. 1 replied that the real mortgagee was defendant No. 2 Shrinarain and that a sum of Rs. 500/- had been spent on repairs and improvements of the mortgaged property and that defendant No 3 Mohinuddin had been inducted as a tenant by the mortgagee. Consequently the plaintiff filed the present suit for redemption of the mortgage and possession of the shop in question on 20-7-1964 in the Court of Munsiff, Jaipur City, Jaipur and prayed that a decree for redemption and possession of the shop in question may be passed in his favour on payment of Rs. 451/-. All the three defendants filed a joint written statement in which they pleaded that the mortgage deed was no doubt written in favour of Hari Narain, defendant No. 1, who was in fact only a Benami and the real mortgagee was defendant No. 2 Shrinarain. It was also pleaded that the mortgagee had spent Rs. 500/- for repairs and improvements on the mortgageh property and consequently the mortgagee was entitled to Rs. 500/- spent on account of repairs along with interest thereon at the rate of 12% per annum as stipulated in the mortgage deed. It was also pleaded that the defendant No 3 Mohinuddin had been inducted as a tenant by the mortgagee and since no case for ejectment had been made out against him under the Rajasthan Premises (Cohtrol of Rent and Eviction) Act, 1950 a decree for possession could not be passed against him.
3. After recording the evidence produced by the parties the learned Munsiff granted a preliminary decree for redemption of the shop in question in favour of the plaintiff directing that the plaintiff should pay Rs. 951/- to the defendant within six months from the date of the decree.
4. Aggrieved by the decision of the trial court Shrinarain filed appeal in the Court of District Judge, Jaipur City praying that he should be allowed interest on the amount of Rs. 500/- spent by him for repairs and improvements on the shop in question. His appeal was registered as Appeal No. 87 of 1968. Lachhiram also filed appeal claiming that no amount should have been awarded to the mortgagee on the account of repairs and improvements. He also contended that the finding of the trial court that Surinarain was the real mortgagee was erroneous and should be set aside. Lastly his prayer was that a decree for possession should have also been granted against the alleged tenant Mohinuddin. Lachhiram's appeal was registered as Civil Appeal No. 86 of 1968. Both these appeals have been disposed of by the learned Additional District Judge No 2, Jaipur City by his judgment daed 10-2-1969. He has held in agreement with the trial court that the mortgage deed was executed in the name of Hari Narain only as Benami and the real mortgagee was Shrinarain. He also held that the mortgagee has proved that he had spent Rs. 500/- for repairs and improvements of the mortgaged property, and that he was entitled to get this amount along with Rs. 265/- as interest. As regards the prayer for ejectment against Mohinuddin the finding of the learned Additional District Judge is that the defendants had failed to prove that Mohinuddin had been inducted as a tenant in the suit shop and that in any case Mohinuddin was not entitled to protection available to a tenant under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In the result he partially allowed both these appeals and modified the judgment and decree of the trial court to this extent that the plaintiff would be entitled to redeem the property in question on payment of Rs. 451/- as principal. Rs. 500/- as costs of repairs and Rs. 265/- interest there on total Rs. 1216/-. He also passed a decree for possession against all the defendants including Mohinuddin.
5. Aggrieved by the judgment and decree of the learned Additional District Judge No 2, Jaipur the mortgagee defendant Shrinarain, the alleged tenant Mohinuddin and the mortgagor Lachhiram have come in appeal.
6. It may be relevant here to state that during the pendency of the appeal before the lower appellate court Lachhiram transferred the property in question by sale to Satish Chand, who was also impleaded as a party before the lower appellate court and has also joined Lachiram in appeal filed by him in this Court. The appeal filed by Lachhiram and his transferee Satish Chand in this Court has been registered as Civil Second Appeal No. 332 of 1969. The appeal No. 204 of 1969 has been filed by Shrinarain and appeal No. 214 of 1969 is by both Shrinarain and Mohinuddin.
7. The points which emerge for decision of these three appeals may be stated as below:
(1) whether Hari Narain was mentioned only as a Benami mortgagee in the mortgage deed, and the real mortgagee was Shrinarain?
(2) whether Rs. 500/- have beer, spent by the mortgagee for repairs and improvements in the property in question, and if so, whether the plaintiff is liable to pay the same to the mortgagee?
(3) whether the mortgagee is entitled to get interest on the cost of repairs, and if so, how much?
(4) whether the decree for ejectment should be passed against Mohinuddin also?
8. It will take up these points for decision in the same order in which they have mentioned above.
9. Learned Cunsel for the plaintiff has argued that the onus of establishing that in the mortgage deed Harinarain's name was mentioned only as Benami and that the real mortgagee was Shrinarain lay heavily on Shrinarain, who asserted Benami nature of the mortgagee and that there are no legal grounds for holding that the apparent recital in the mortgage deed is incorrect He has submitted that from the conduct of Shrinarain it is clear that he had been all the time treating Hari Narain as the real mortgagee and had never asserted his own right as a mortgagee. In support of his contention learded counsel has relied upon Gangadara Ayyar v. Subramania AIR 1949 P.C. 88 Kanakrathanammal v. V.S. Loganatha : 6SCR1 , Narayan v. Gopal : 1SCR773 , and Bharat Singh v. Bhagirathi : 1SCR606 .On the other hand learned Counsel for Shrinarain has submitted that the finding of the lower court that the real mortgagee was Shrinarain and the name of Harinarain was mentioned in the mortgage deed as mortgogee only Benami is based on over whelming evidence and the same cannot be challenged in second appeal as it is a finding of fact. In support of his contention he has relied upon Misrilal v. Surji AIR 1950 S.C. 28, Shyamsundar v. Darbhangi Rai : AIR1960Pat420 , and Girdharilal v. Krishan Datt
10. After hearing learned Counsel for parties. I have come to conclusion that their is ample evidence to support the finding of the first appellate court that Harinarain a name as mortgagee was mentioned in deed only as a Benami & the real mortgage was Shrinarain. It may be noticed that the mortgagor Lachhiram is admittedly the uncle of Shrinarain & Harinarain is the brother in law (wife's brother) of Shrinarain. Shrinarain's case that due to his close relationship with Lachhiram he did not think it proper to get the mortgage deed executed in his favour as it may create unpleasantness between him and his uncle in case matters came to head and litigation became necessary. Shrinarain's state ment in this connection has been fully supported by Harinarain. It appears that the shop in question was sub-mortgaged in favour of Gokulchand on 22-1-1952 and a rent note in respect of this shop was then executed by Shrinarain in favour of Gokulchand. That rent note is Ex. A 3 and its execution stands proved. Then again Shrinarain has been present on all the occasions in connection with the transaction regarding the shop in suit, subsequent to the mortgage by Lachhiram. He was present at the time the mortage deed was got registered by Lachhiram. It was Shrinarain who gave notice to Lachhiram that the mortgaged shop required repairs. Thus the finding of the lower court in this connection cannot be said to rest on mere suspicion and there is substantial and legal testimony in support of it. The probabilities of the case are that the real mortgagee was Shrinarain and there is no ostensible reason why Harinarain and Shrinarain would have put forward this case of mortgage detd being in favour of Harinarain as Benami unless it was in fact so? After a careful consideration of the evidence of Harinarain and Shrinarain coupled with the circumstance and probablities of the case, I cannot only do not see any reason to differ from the finding of the lower court in this connection, but am firmly of the view even on an independent assessment of the material on the record that the mortgage deed was executed in favour of Harinarain only as Benami, and the real mortgagee was Shrinarain.
11. As regards the costs of repairs, admittedly, there is a term in the mortgage deed itself that the mortgagee would be entitled to carry out necessary repairs in the shop in question after serving due notice on the mortgagor. A notice was also served. But objection is that the notice was served by Shrinarain and that the defendants have not succeeded in proving the cost of repairs as claimed by them. The learned Additional District Judge has found that the cost of repairs is amply proved by the statements of Shrinarain (D.W. 1), Harinarayan (D.W. 2), Gangaram (D.W. 3), Kishenlal (D.W. 4) and Azim Bux (D.W. 5). The objection of the learned Counsel for the plaintiff is Rs. 100/- have been spent in replacing the shutters of the shop which cannot be considered as necessary repairs. He has alao submitted that the receipt Ex. A1/1 and Ex. A 1/2 executed by Azim Bux & Gangaram who are alleged to have carried out the necessary repairs are not reliaqle. It may be observed that there is evidendence that the old shutters had gone out of repairs and needed replacement. The learned lower court has accepted the evidence proproduced by the plaintiff in this connection referred to above and I do not see any ground to interfere with the finding of the lower court on this point. No doubt Shrinarain in his notice Ex. 1 has mentioned that he had paid the mortgage money to Harinarain and has carried out the repairs in accordance with the terms of the mortgage deed but he has admitted in his statement that as a matter of fact he had not paid the mortgage money to Harinarain but had advanced the mortgage money himself, from the very start and he had so worded the notice on account of the mortgage transaction being in favour of Harinarain Benami. The explanation given by Shrinarain appears to be quite plausible. I am, therefore in agreement with the lower appellate court that the defendant-mortgagee Shrinarain has succedded in establishing that Rs. 500/- were spent as cost of repairs on the mortgaged property.
12. The question then arises whether the mortgagee is entitled to get interest on the costs of repairs and if so, how much? Admittedly there is a clause in the mortgag deed that the mortgagee would be entitled to get interest at the rate of 12% per annum on the costs of repairs. The lower appellate court has awarded Rs. 265/- only as interest upto the date of the suit, but has not allowed interest on this amount upto the date fixed in the preliminary decree for payment of the mortgage money and thereafter in case the mortgage money is not paid till then. Learned Counsel for the mortgagee has invited my attention to Order XXXIV, Rule 7 and 11, Civil P.C. Order XXXIV, Rule 11, C.P.C reads as under:
Rule 11 In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the court may order payment of interest to the mortgagee as follows, namely--
(a) interest upto the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage--
(i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the court deems reasonabble,
(ii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurrad by the mortgagee in respect of the mortgage-security upto the date of the preliminary decreed and added to the mortgage money,-at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six percent per annum as the Court deems reasonable; and
(b) subsequent interest upto the date of realization of actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable?
In this connection it may be relevant to refer to Order XXXIV; Rule 7 Sub-rule (1) Clause (c)(i), which runs as follows:
(i) that, if the plaintiff lays into Court the amount so found or declared due on or before such date as the court may fix within six months from the date on which the Court confirms and countersigns the accounts taken under Clause (a), or from the date on which such amount is declared m Court under Clause (b), as the case may be, and thereafter pays such amount as may be adjudged and expenses as provided in Rule 10 together with subsequent interest on such sums respectively as provided in Rule 11, the defendant shall deliver upto the plaintiff, or to such person as the plaintiff, appoints all documents in his possession or power relating to the mortgaged properto and shall, if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him, or where the defendant claims, ,by derived title, by those under whom he claims and shall also, if necessary, put the plaintiff in possession of the property,' The Italcs line is mine)
13. The above clause clearly provides for payment by the mortgagor of interest subsequent to the date fixed for payment under the preliminary decree upto the date of the actual realisation of the mortgage money. The same rules which should guide the Court with reference to interest accruing prior to the suit would apply also till the date fixed under the decree for the payment of the mortgage money. Consequently where there is a stipulated rate of interest the Court would ordinarily decree interest at that rate till the date fixed for payment of the decretal amount, unless it appears to be excessive. In the present case the stipulated rate of interest is 12% per annum, which I do not consider to beexeessive. Accordingly I hold that the defendant-mortgagee Shrinarain is entitled to get intereset 12% per annum on Rs. 500/-being the cost of repairs upto the date fixed under the decree for the payment of the, mortgage money. He will also be entitled to subsequent interest upto the date of realisation or actual payment at 6% per annum.
14. This brings me to the last point, namely, whether the plaintiff is entitled to get possession of the suit shop from Mohinuddin, the alleged tenant of the mortgagee? Learned Counsel for the Mohinuddin in Appeal No. 214 of 1969 has contended that Mohinudin has been admitted to be the tenant of the mortgagee by the plaintiff himself in para No. 4 of the plaint, and, therefore, the lower appellate court, was not justified in holding that the defendant No. 3 Mohinndin is not proved to be a tenant in the suit shop. He has also invited my attention to the memo of appeal filed by the plaintiff in the lower appellate court wherein no specific objection has been taken to the finding of the trial court that the defendant No, 3 Mohinudin a tenant in the shop and had been lawfully put in possession of the same by the mortgagee. On the other had the learned Counsel for the plaintiff has strenuously urged that the finding of the lower appellate court in this connection is a finding of fact which cannot be interfered with in second aapeal. The lower appellate court has no doubt observed that no rent note of Mohinudin or receipts of rent paid by Mohinudin have been pleced on the record nor has Mohinudin has been examined as a witness in the case. It is also true that the learned lower court has not considered the evidence of the Shrinarain sufficient for holding that Mohinudin had been admitted as a tenant by him. If the matter had rested there I would not have interfered with the finding of the lower appellate court. But it does appear that the lower court did not take into consideration the averment contained in para No. 4 of the plaint where in the plaintiff had stated that Mohinudin was occupying the shop in question as a tenant of the mortgagee. It is true that this allegation has been made by the plaintiff on the basis of the information alleged to have been supplied to him by the defendant-mortgagee himself. In the written statement filed by the defendant the position was made still clear and it was definitely stated that Mohinudin has been adimitted as a tenant on a monthly rent of 16 by the mortgagee. Shrinarain supported this allegation when he came in the witness-box as D.W 1. But the plaintiff did not cross-examine him on this point at all. Apart from that the plaintiff has not said a word in his statement that Mohinudin was not in possession of the shop in question as a tenant. As a matter of fact the plaintiff does not seem to have seriously challengad this part of the defendants' case before the trial court and in the memorandum of appeal filed by him before the first appellate court, as alrady stated above no specific objection was taken that the finding of the trial court that he had been inducted as a tenant by the mortgagee was erroneous Thus the the learned Additional District Judge while arriving at his finding in this connection has ignored the allegations in para No. 4 of the plaint. He has failed to notice that the statement of Shrinarain (DW. 1) in this connection was allowed to go unchallenged in the course of cross-examination. He also does not seen to have taken into consideration that there was no specific objection taken by the plaintiff in the memorandum of appeal filed him in the first appellate court. In this view of the matter I feel inclined to hold that the finding of the learned first appellate court on his point stands vitiated and I have come to the conclusion that the defendant No, 3 Mohinudin was inducted as a tenant of the mortgagee Shrinarain.
15. The next question is whether Mohinudin is entitled to protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950? The learned Counsel for Mohinudin has placed reliance on a Bench decision of this Court Ghamandi Ram v. Shankerlal 1965 RLW 333. I have gone through this judgment. This ruling undoubtedly supports the contention of the learned Counsel. However, learned Counsel for the plaintiff submitted that the view taken in the aforesaid case of our Court requires reconsideration in view of a mess of case law to the contrary and in this connection he has brought to my notice the following rulings:
Purahottam v. Ram chanannlal : AIR1967MP237 , Kamalkar Co. v. Gulamshafi : AIR1963Bom42 , Ravji v. Gopalji : AIR1963Guj328 , Ameenuddin v. Narsingh Das AIR 1953 Hyd.129, Gian Singh v. Mohan Lal AIR 1964 Punj.346 Ram Kishan v. State AIR 1970 Pun. 104.
16. However, I have come to the conclusion that no reference to a larger Bench is necessary. Consequently the finding of the learned Additional District judge that the plaintiff is entitled to get possession of the shop from Mohinudin in the present suit deserves to be set aside.
17. In the result appeals No. 204 & 214 of 1969 3re allowed, and the appeal No 332 of 1969 is dismissed. The decree passed by the lower appellate court is modified as below:
The decree for possession against Mohinudin is set aside, and the plaintiff's suit for possession of the shop in question against Mohinudin is dismissed. The plaintiff's suit for redemption of the shop in question is decreed but the amount of the mortgage money fixed by the lower court is enhanced to the extent that the defendant-mortgagee Shrinarain will be entitled to get interest on the cost of repairs Rs. 500/- from the date of the suit till the date fixed for payment of the mortgage money and other charges in the preliminary decree at the rata of 12% per annum, and subsequent thereto at 6% per annum till realisation. In the circumstances of the case the parties are left to bear their own costs.
18. An amended preliminary decree may be drawn as provided in Order XXXIV, Rule 7 Civil P.C. and the period for payment of the mortgage money and other charges may be fixed as six months from today.
19. Learned Counsel for the plaintiff prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.