Kukaji v. Misri Lal — 1951 DIGILAW 46 (MP)

JUDGEMENT : This appeal arises out of a suit for redemption in respect of a portion of a house situated in Agar. The appeal is by the defendant mortgagee and it is directed against the decision of the District Judge, Shajapur, affirming the judgment and decree of the Sub-Judge, Agar, whereby the plaintiff-respondent's claim for redemption of the house was allowed. 2. It was alleged by the plaintiff that on 'Jeth Sudi 11 Samvat 1976' one musammat Bhagi Bai mortgaged a portion of a house belonging to her with the plaintiff's father for Rs. 40/8/- and that on the same date Bhagi Bai mortgaged the remaining portion of the house for Rs. 60/8/- with the defendant Kukaji; that after the death of Mst. Bhagi Bai, her legal representative Nathu Lal sold on 10-8-39 by a registered deed the equity of redemption in respect of the portion mortgaged with Kukaji to the plaintiff for a consideration of Rs. 400/; and that after purchasing the equity of redemption the plaintiff asked Kukaji to accept the amount of the mortgage debt and release the property mortgaged with him by Bhagi Bai. But Kukaji declined to do so. The plaintiff, therefore, as the purchaser of the equity of redemption in respect of the portion of the house mortgaged by Bhagi Bai with Kukaji, brought the suit for redemption. The defendant Kukaji resisted the suit mainly on the ground that subsequent to the mortgages effected by Bhagi Bai, on Jeth Sudi 15 Samvat 1976 the plaintiff's father and he entered into a written agreement stipulating that in the event of the plaintiff's father purchasing the entire house from Bhagi Bai, the plaintiff's father would retain the portion of the house mortgaged with him and would transfer to the defendant the portion of the house mortgaged with the defendant and further that if the defendant purchased the whole house from Bhagi Bai, he would similarly retain the portion of the house mortgaged with him and transfer to the plaintiff the portion of the house mortgaged with the plaintiff's father. The defendant, therefore, claimed that in accordance with this agreement, the plaintiff was not entitled to redeem the property mortgaged with the defendant. The defendant also pleaded that he was entitled to get from the plaintiff costs of the improvements effected to the property, if it is held that the plaintiff is entitled to redeem the property. The defendant, therefore, claimed that in accordance with this agreement, the plaintiff was not entitled to redeem the property mortgaged with the defendant. The defendant also pleaded that he was entitled to get from the plaintiff costs of the improvements effected to the property, if it is held that the plaintiff is entitled to redeem the property. The trial Court passed a decree for redemption in favour of the plaintiff. The trial Court disallowed the defendant's plea as regards the costs of improvements. Thereupon, the defendant Kukaji appealed to the Court of District Judge, Shajapur. When the appeal first came up for hearing before the learned District Judge, he came to the conclusion that an issue with regard to the costs of improvements should have been framed in the suit. He, therefore, framed the issue and directed the trial Court to record the evidence of the parties on the issue and return the evidence together with its findings thereon. After the receipt of the additional evidence, the learned District Judge proceeded to determine the appeal. He ultimately dismissed the appeal affirming the judgment and decree of the trial Court. On the question of the costs of improvements alleged to have been incurred by the defendant Kukaji, the learned District Judge held that under S. 63(A) of the T. P. Act, he was not entitled to get any such costs from the plaintiff but that he was at liberty to remove certain ceiling sheets. The learned District Judge also directed that the costs of the appeal before him should be borne by the parties themselves. The defendant Kukaji has now appealed to this Court against the decision of the District Judge Shajapur. 3. When this appeal came up for hearing before my brother Mr. Justice Shinde, he raised the objection that as the valuation of the appeal was less than Rs. 500/- and the judgments of the Courts below were concurrent, this appeal was incompetent. Learned Counsel for the appellant, then, prayed for time to present an application for the conversion of the memo of appeal into a petition of revision. In my opinion, no application lies against the decision of the District Judge in this case. 500/- and the judgments of the Courts below were concurrent, this appeal was incompetent. Learned Counsel for the appellant, then, prayed for time to present an application for the conversion of the memo of appeal into a petition of revision. In my opinion, no application lies against the decision of the District Judge in this case. Learned Counsel for the appellant contends that the judgment and decree of the trial Court has been varied by the decision of the appellate Court inasmuch as the defendant Kukaji has been given the liberty of removing the ceiling sheets and the lower appellate Court has directed that the costs of the suit should be borne by the parties themselves. I am unable to accept this contention. Both the Courts below have disallowed the defendant the costs of improvements. I do not read the direction as regards costs in the decree of the first appellate Court as implying any change in the order of costs made by the trial Court. The direction with regard to the costs in the decree of the appellate Court refers only to the costs of the appeal and from the mere fact that costs of the appeal are disallowed to the parties, it cannot be maintained that the decree of the trial Court has been varied. The appeal is, therefore, clearly incompetent. But in view of the legal questions raised in this appeal, I grant the prayer of the defendant to treat this appeal as a revision petition, and dispose it of accordingly. 4. Mr. Mungare, who appeared on behalf of the applicant Kukaji, first contended that as the lower Court has held that the plaintiff's father and the defendant Kukaji entered on Jeth Sudi 15 Samvat 1976 into an agreement, it should have further proceeded to enforce the agreement and held that in accordance with that agreement the plaintiff was not entitled to redeem the property. In my opinion, there is no substance in this contention. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished by an act of the parties or by the decree of a Court. It is not the case of the applicant that the right of redemption has been extinguished in this case by the decree of the Court. The right of redemption can be extinguished by an act of the parties or by the decree of a Court. It is not the case of the applicant that the right of redemption has been extinguished in this case by the decree of the Court. His contention is that the agreement entered into by him with the plaintiff's father prevents the plaintiff from exercising the right of redemption. Unless, therefore, on the construction of this agreement it is held that the equity of redemption is extinguished, the plaintiff's suit for redemption is not barred. The terms of the agreement entered into by the parties on Jeth Sudi 15 Samvat 1976 do not, in my opinion, extinguish the right to redemption in respect of any mortgage. From the wording of the agreement it is clear that it contemplates that if either party acquires the equity of redemption in respect of the entire house, he would retain the right in respect of the portion of the house mortgaged with himself and transfer to the other the right in respect of the portion of the property mortgaged with the other party. This agreement does not itself transfer any right to any party. It is merely an agreement to convey the equity of redemption in respect of the portions of the house from one party to the other. The question, therefore, of the extinction of the equity of redemption would have arisen only if the parties had done some thing in pursuance of the agreement to extinguish the equity of redemption in the portion of the house concerned. The equity of redemption cannot be held to be extinguished by a mere agreement to convey. In this connection I need only refer to the observations of the Federal Court in paragraphs 4, 12 and 14 of their decision reported in 'Subba Rao v. Matapalli Raju', AIR (37) 1950 FC 1 37. In my opinion, the learned District Judge was right in holding that the agreement pleaded by the applicant does not constitute a bar to the plaintiff's suit for redemption. 5. It was next argued by the learned counsel for the applicant that the defendant is entitled to get from the plaintiff costs of improvements to the property. This contention is well-founded. The learned District Judge has disallowed the costs under S. 63A of the T. P. Act. 5. It was next argued by the learned counsel for the applicant that the defendant is entitled to get from the plaintiff costs of improvements to the property. This contention is well-founded. The learned District Judge has disallowed the costs under S. 63A of the T. P. Act. But this section has, in my opinion, no applicability in the present case as the mortgage on the basis of which the plaintiff has sued was effected in Samvat 1976 that is, long before S. 63-A was inserted in 1929 in the T. P. Act or long before the Gwalior T. P. Act came into force. Again, the terms of the mortgage deed in the present suit allowed the mortgagee to make improvements and repairs and to recover the costs from the mortgagor at the time of the redemption of the property. The question, therefore, of the costs of improvements must be determined with reference to the terms of the mortgage-deed and to the principle of common justice that the mortgagee is entitled to recover from his mortgagor the reasonable and proper costs incurred in making lasting improvements. This principle was followed by the Bombay High Court in cases decided before S. 63-A was added to the T. P. Act. See 'Nijalingappa Nijappa v. Chanabasawa Satvirappa', 43 Bom 69; 'Dnyanu Laxman v. Fakira Ebram', 45 Bom 1301. In the present case both the Courts below have found that the costs of reasonable and lasting improvements effected by the applicant in the mortgaged property is Rs. 153/ 8/-. The plaintiff non-applicant led no evidence to show that the improvements were not reasonable or lasting, or that the cost claimed by the applicant in respect of those improvements is high. In fact, he did not lodge any objection in the Court of the District Judge about the finding of the trial Court on the improvements effected and the cost thereof. In my judgment the defendant is entitled to recover on the redemption of the property Rs. 153/8/- from the plaintiff as costs of the improvements to the mortgaged property. The applicant will have no option of removing the ceiling sheets. 6. In my judgment the defendant is entitled to recover on the redemption of the property Rs. 153/8/- from the plaintiff as costs of the improvements to the mortgaged property. The applicant will have no option of removing the ceiling sheets. 6. For the above reasons, I would allow this revision petition and modify the judgment and decree of the Courts below with the direction that in addition to the amount found due on the mortgage by the lower Court, the plaintiff shall pay to the defendant Kukaji Rs. 153/8/- as costs of improvements before redeeming the property. Parties shall bear their own costs in this Court and the Court of the District Judge, Shajapur.