HASMUKHLAL RAICHAND v. CHANDRAKANT MAHENDRALAL — 1985 DIGILAW 317 (GUJ)

M. B. SHAH, J. ( 1 ) THE plaintiffs who are the heirs and legal representatives of one Mahendralal Balubhai had filed Special Civil Suit No. 34 of 1973 before the Civil Judge (S. D.) Navsari for redemption and possession of the mortgaged property after taking accounts. It was their contention that by a registered mortgage-deed dated 27-4-61 Survey Nos. 683 684 and 685 in all admeasuring 4 acres 21 gunthas of Navsari were mortgaged by deceased Mahendralal Balubhai for security of Rs. 15 0 taken from the defendant No. 1. In paragraph 3 of the plaint it is their say that at that time defendants Nos. 2 and 3 were in posse ssion of the suit property as tenants; for paying the mortgage debt an arrangement was arrived at between the parties that defendants Nos. 2 and 3 would pay rent directly to the defendant No. 1; that they came to know that the defendant No. 1 had transferred the suit lands to defendants Nos. 2 to 5; as the defendants refused to redeem the mortgaged property after settling the accounts notice was given on 10-4-73 and the suit was filed. It is their contention that the plaintiffs are prepared to pay whatever amount is found due and payable by them to the defendants. 2 Defendant No. 1 had filed written statement Ex. 20 and he has denied the contentions raised by the plaintiffs. It is his say that deceased Mahendralal Balubhai had executed a registered sale-deed on 27 after receiving full market value of the property with a condition that if deceased refunds the amount of Rs. 15 0 within three years then he was to execute a reconveyance deed in favour of the deceased. As the deceased had failed to comply with the said term the plaintiffs are not entitled to have reconveyance deed. He has further contended that by a transferred the suit lands to the defendant No. 6 Narayan Bricks Factory a partnership firm of which defendants Nos. ( 2 ) TO 5 are partners. Defendants Nos. 2 to 5 have filed written statement Ex. 22. It is their contention that they are bona fide purchasers for value without notice and that they were not knowing that the defendant No. 1 was the mortgagee in possession. ( 2 ) TO 5 are partners. Defendants Nos. 2 to 5 have filed written statement Ex. 22. It is their contention that they are bona fide purchasers for value without notice and that they were not knowing that the defendant No. 1 was the mortgagee in possession. ( 3 ) AFTER recording the necessary evidence the learned Judge by the judgment and decree dated 5/05/1978 held that the document Ex. 52 dated 27/04/1961 executed by deceased Mahendralal in favour of defendant No. 1 was a mortgage by conditional sale for a consideration of Rs. 15 0 and plaintiffs are entitled to redeem it after settling the accounts. He negatived the contention of the defendants Nos. 2 to 5 that they were bona fide purchasers for value without notice of the right of the plaintiffs to redeem. With regard to the possession he held that defendants Nos. 2 and 3 were tenants of the suit lands prior to the mortgage and therefore they are entitled to retain the possession. The learned Judge negatived the contention of the plaintiffs that they are entitled to recover physical possession of the suit land from the defendants Nos. 2 to 6 after redemption. ( 4 ) BEING aggrieved and dissatisfied by the aforesaid judgment and decree original defendant No. 1 has filed First Appeal No. 645 of 1978 defendants Nos. 2 to 6 have filed First Appeal No. 655 of 1978 and the plaintiffs have filed First Appeal No. 1057 of 1978. As all these appeals arise out of the same judgment and decree they are disposed of by this common judgment. ( 5 ) LEARNED advocates for the appellant-defendant No. 1 and defendants Nos. 2 to 5 vehemently submitted that the finding of the learned Judge that deed Ex. 52 executed by deceased Mahendralal was a mortgage by conditional sale is illegal and erroneous. They contended that by the said document there was outright sale of suit fields and the only right of the deceased was to re-purchase the said property within three years. They submitted that in the document itself it is mentioned that deceased Mahendralal or his heirs were entitled to repurchase the property and after lapse of three years they would not have any right in the property. ( 6 ) IN my view reading the document Ex. They submitted that in the document itself it is mentioned that deceased Mahendralal or his heirs were entitled to repurchase the property and after lapse of three years they would not have any right in the property. ( 6 ) IN my view reading the document Ex. 52 as a whole it cannot be said that it is a deed for outright sale with a condition to re-purchase only but it is a deed for mortgage by conditional sale: the document provides that the executor Mahendralal Balubhai had received Rs. 15 0 in cash to-day and in considerationthereof his ownership land described below was sold with a condition that if the aforesaid rupees were returned within three years by him or by his heirs and legal representatives then the transferee or his heirs were required to reconvey the said property and only on that condition the property was sold. After describing the properties it has been further mentioned that the transferee was made owner by sale with the aforesaid condition The exact wordings in Gujarati are as under: it is further narrated that the land was in his possession and that his possession was continued; that land revenue was to be paid by the transferee and it was to be mutated in Government record in his name. The other material term is that within three years if the executor does not pay the aforesaid amount then after lapse of the said period the executor or his heirs and legal representatives would not have any right of re-purchase and it would be deemed that the said right is extinguished and with this condition the land was sold. ( 7 ) NOW the aforesaid tenor of the document indicates that there was no question of outright sale. In a document of outright sale this type of language would not be used. Normally the document would mention that the property is sold for a consideration stated therein. The document would not merely state that the transferee is made owner of the property but it would state that the transferee had become absolute owner of the property and that he is entitled to deal with it as owner in any manner he likes by sale gift mortgage or lease. The document would not merely state that the transferee is made owner of the property but it would state that the transferee had become absolute owner of the property and that he is entitled to deal with it as owner in any manner he likes by sale gift mortgage or lease. There is no recital in the document that transferee was entitled to deal with the property as an absolute owner and that he can transfer it to any person by way of sale gift mortgage or lease. The document further all throughout repeatedly states that the sale was subject to a condition stated previously. This also indicates that the executor never intended to transfer the property absolutely. ( 8 ) THE learned advocate Mr. J. U. Mehta relied upon the decision of this Court in the case of C. Madhaji v. P. Magandas AIR 1973 Gujarat 190. In my view this decision in no way assists his contention that the document Ex. 52 is a sale-deed. In that case the Court has considered the terms of the said document and held that the document was that of mortgage by conditional sale. Even while considering the terms of the document the Court has taken into consideration the tenor of the document which was produced in the said case and held as under:"as aforesaid the suit document begins with the material recital that the executor of the document (plaintiff herein) has taken Rs. 1 650 from the person in whose favour the document is executed. It is then stated that the amount is received. It is then significantly stated that in consideration of the receipt of this amount (Tena Avejima) the executor was executing the document in respect of the stated property and was handing over possession thereof to him. This is the language employed in the document and indicates the real character of the transaction to be not of an outright sale but of a mortgage by conditional sale. The clause providing for reconveyance of the land on a certain date on the payment of same amount of consideration namely Rs. 1 650 is significant. It is a condition providing for reconveyance and is embodied in the same document. The language used in and the tenor of the document is net such as are ordinarily used in an outright sale transaction. 1 650 is significant. It is a condition providing for reconveyance and is embodied in the same document. The language used in and the tenor of the document is net such as are ordinarily used in an outright sale transaction. In a sale transaction the executor will say that he is selling the property to the person in whose favour the document is executed for the stated consideration and not that for a consideration taken by him he is giving the land and handing over possession thereof". Secondly the condition of re-purchase is embodied in the document itself. This would also indicate that there was no intention of the parties that the transaction is of sale. In the case of Chunchun Jha v. Ebadat Ali A. I. R. 1954 S. C. 345 in paragraph (8) while considering this type of documents the Supreme Court has held that the Legislature has excluded transactions embodied in more than one document from the category of mortgages therefore it is reasonable to suppose that a person who after the amendment chooses not to use two documents does not intend the transaction to be a sale unless he displaces that presumption by clear and express words; and if the conditions of sec. 58 are fulfilled then that deed should be construed as a mortgage. ( 9 ) IN the case of P. L. Bapuswami v. N. Pattay A. I. R. 1966 Supreme Court 902 the Court has also taken into consideration that the condition for re-purchase was embodied in the same document and therefore it indicates that there was a mortgage. The learned advocate for the defendants however submitted that merely because condition to re-purchase is incorporated in the deed is no criterion for holding that it is a mortgage transaction and for that purpose he has relied upon the following part of the aforesaid judgment:"the Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified. The distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its the legal effect. If there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts". With this proposition of law there cannot be any dispute because same was the ratio of the Supreme Court decision in Chunchun Jhas case (supra) but the Supreme Court has specifically held that if the condition of re-purchase is embodied in the document which effects or purports to effect the sale then it is a matter of the construction of the said document and after the amendment of sec. 58 a presumption can be raised that the parties intended the transaction to be not of sale. Unless that presumption is displaced it is to be held that the document was of mortgage. ( 10 ) THE third important circumstance is that the consideration for reconveyance was Rs. 58 a presumption can be raised that the parties intended the transaction to be not of sale. Unless that presumption is displaced it is to be held that the document was of mortgage. ( 10 ) THE third important circumstance is that the consideration for reconveyance was Rs. 15 0 i. e. the same amount as the consideration for the document Ex. 52. This would also indicate that the intention of the parties was to have mortgage and not absolute sale. ( 11 ) FOURTHLY in this case there is admission in para 17 of the deposition of defendant No. 1 that out of Rs. 15 0 for consideration for the sale deed Rs. 5 0 were credited in Mahendralals account and Rs. 10 0 were credited in the name of Narayan Bricks Factory (defendant No. 6 ). This admission proves that there was relationship of debtor and creditor between the parties otherwise there was no question of crediting Rs. 5 0 in the name of Mahendralal in the accounts. He further admitted that since S. Y. 2012 there were relations with Mahendralal and Rs. 5 0 were paid to Mahendralal on Vaisakh 9 of S. Y. 2017. That amount is credited for the consideration of document Ex. 52. He further admits that Rs. 5 0 were given by way of loan on Vaisakh Sud 9 of S. Y. 2017. Thereafter again loan of Rs. 5 0 was given on Vaisakh Vad 12 which was re-paid on Jeth Vad (15) Amas. That amount was paid to Mahendralal by debiting in the name of Balubhai because Balubhai Virchand was doing money-lending business. He further admits certain other transactions. He also admits that he was giving money to the businessman because of relations. Sometimes he was charging interest and from some no interest was charged. These admissions of the defendant No. 1 leave no room for doubt that the relationship between the deceased Mahendralal and defendant No. 1 was that of debtor and creditor. Therefore there is no doubt that the transaction Ex. 52 was by way of security of the loan amount and it is of mortgage by conditional sale. ( 12 ) FIFTHLY there is letter Ex. 96 which in terms reveals that the document was executed for the security of money paid to Mahendralal. Therefore there is no doubt that the transaction Ex. 52 was by way of security of the loan amount and it is of mortgage by conditional sale. ( 12 ) FIFTHLY there is letter Ex. 96 which in terms reveals that the document was executed for the security of money paid to Mahendralal. It is written by defendant No. 1 Hasmukhlal Raichand on 5-5-64 in reply to a letter (Ex. 94) dated 25-4-64 written by Mahendralal Balubhai. In Ex. 96 the defendant No. 1 has stated that before the sale-deed was executed he was a tenant of the land and he was in possession of it sale deed was executed only for the security of money: at the time of sale-deed possession was not handed over to him and that in the saledeed also it is not mentioned that possession was handed over in pursuance of the deed. In my view this admission of defendant No. 1 reveals the intention of the parties that the document Ex. 52 was executed for the security of loan amount and hence also Ex. 52 is a mortgage document. ( 13 ) LASTLY it should further be noted that there is evidence on record to show that the value of the property in 1961 was Rs. 38 0 and not Rs. 15 Q00/ -. For this purpose the plaintiffs have examined Krishnakant Hiralal Parikh at Ex. 106 who is a registered Valuer and was having qualification of B. E. (Civil ). He has produced valuation report at Ex. 107. According to him in the wear 1961 the price of the land would be Rs. 38 400 In December 1970 its value was Rs. 53 400 In December 1977 its value was Rs. 86 400 To this witness it was suggested that the annual letting value is also standard method for valuation. The witness has replied that generally 12 to 15 times multiplication of annual rent is the method for arriving at the market value of the properties. Even if we take this aspect into consideration then also admittedly rent of the suit premises in 1959 was Rs. 2 101 For that the plaintiffs have produced Ex. 93 a lease-deed executed by defendants Nos. 2 and 3 in favour of deceased Mahendralal. Taking into consideration the rent of Rs. Even if we take this aspect into consideration then also admittedly rent of the suit premises in 1959 was Rs. 2 101 For that the plaintiffs have produced Ex. 93 a lease-deed executed by defendants Nos. 2 and 3 in favour of deceased Mahendralal. Taking into consideration the rent of Rs. 2 101 it is clear that the value of the property would be far more than Rs. 15 30 in the year 1961. Therefore also it is clear that the document Ex. 52 is a mortgage-deed and not a sale-deed. ( 14 ) IN the above view of the matter the contention of the learned advocates for the defendants that because in the document the name of Mahendralal is mentioned as the vendorit should be held that the document is an outright sale is without any substance. In the document as a whole nowhere it is mentioned that absolute proprietory rights in the property were transferred to defendant No. 1. The tenor of the whole document as discussed above indicates that there was no intention to sell the property absolutely. The phrase defendant No. 1 wag made owner would indicate that there was no intention of transferring absolute ownership rights by the said document but he was made something like an owner of the property. Therefore the contenion of the learned advocate for the defendants that the document was for outright sale of the property with a condition to re-convey and not a mortgage by conditional sale is without any substance and deserves to be rejected. ( 15 ) IN first Appeal No. 655 of 1978 the learned advocate Mr. Mehta submitted that the finding of the learned Judge on the issue No. 6 i. e. whether defendants Nos. 2 to 5 were bona fide purchasers for value without notice of the right of the plaintiffs is erroneous. In my view this question would not arise because defendant No. 1 could transfer only his rights and when defendant No. 1 was not the absolute owner of the property he had no right to transfer the said property absolutely to defendants Nos. 2 to 5. Even presuming that defendants Nos. 2 to 5 were bona fide purchasers for value without notice yet it would not confer any better right than what defendant No. 1 was having. 2 to 5. Even presuming that defendants Nos. 2 to 5 were bona fide purchasers for value without notice yet it would not confer any better right than what defendant No. 1 was having. Further ven taking into consideration the dep o sition of defendant No. 2 he has stated that before the sale-deed is executed notice in the newspapers is published yet he thought it not necessary to give notice after the agreement to sell. Apart from this aspect taking into consideration the extracts of account books Exs. 41 to 50 and extracts of accounts produced by the defendant No. 2 at Exs. 132 to 146 it is abundantly clear that parties were known to each other defendants Nos. 2 and 3 were paying rent to deceased Mahendralal and on some occasions they were paying rent to defendant No. 1 for Mahendralal. Therefore it is difficult to accept the contention of defendants Nos. 2 to 6 that they are bona fide purchasers for value without notice of plaintiffs right to reedem the mortgaged property. It should also be noted that defendants Nos. 2 to 6 have purchased the said property by a document Ex. 51 dated 27/03/1970 and the suit for redemption is filed on 21/04/1973. Therefore there is no question of perfecting the title by adverse possession. ( 16 ) IN First Appeal No. 645 of 1978 the learned advocate Mr. Vyas for the appellant submitted that. the order passed by the learned Judge directing to settle the accounts for their dues is on the face of it illegal because the plaintiffs i. e. the heirs of deceased Mahendralal were bound to pay the mortgage amount of Rs. 15 0 In my view; this contention of the learned advocate is well founded because if the plaintiffs want reconveyance or redumption of the mortgaged property they ale bound to pay the said amount and there is no question of settling the accounts between the parties. ( 17 ) THE learned advocate Mr. N. R. Oza appearing for the plaintiffs in First Appeal No. 1057 of 1978 vehemently submitted that the finding of the learned Judge that the plaintiffs are not entitled to get physical possession of the suit property because the defendants Nos. 2 and 3 were tenants and were doing brick business in the name of Narayan Bricks Factory prior to mortgage is illegal and erroneous. 2 and 3 were tenants and were doing brick business in the name of Narayan Bricks Factory prior to mortgage is illegal and erroneous. It is his contention that after deceased Mahendralal executed the mortgage-deed tenancy rights of defendant No. 1 or defendants Nos. 2 and 3 were extinguished either on the principle of merger or on the principle of implied surrender. For this proposition he relied upon the decision of Ramrao v. Pahumal A. I. R. 1963 Madhya Pradesh 296 wherein the Court has held as under:"in the absence of a contract to the contrary the relationship of landlord and tenant ceases as soon as the tenant accepts a pure usufructuary mortgage of the tenanted premises and on redemption the mortgagor is entitled to get back actual possession from the mortgagee and the pre-existing tenancy does not revive. If the tenant desires to revive his pre-existing tenancy he must have the landlord-mortgagor to enter into such a covenant. When bilateral transaction determines the defendants tenancy by implied surrender it cannot be revived unilaterally". He further referred to the decision in the case of Dhulilal v. Pannalal A. I. R. 1963 Rajasthan 110. There also the Court has held that the two relationships namely of landlord and tenant and of mortgagor and mortgagee could not stand side by side or co-exist and therefore the earlier relationship of landlord and tenant must be hold to have been. impliedly surrendered when the subsequent one of mortgagor and mortgagee arose for operation. It should be noted that in this very judgment the Court has held that this rule seems to be subject to an exception that where a tenant possesses right of a more or less permanent character the loss or extinction thereof is not favoured in law and in this type of case there will be a suspension of such tenancy rights and no surrender thereof and the tenancy-right will as it were be revived when the other relationship does come to an end. In this judgment the Court has referred to the judgments of the other High Courts and the learned advocate for the appellants submitted that he also relies upon the said judgments namely Velu v. Lekshmi A. I. R. 1953 Travancorecochin 584 Meenakshi Amma v. R. V. Narayani. A. I. R. 1957 Madras 212 and G. Valia Raja v. T. Vareed A. I. R. 1961 Kerala 293. A. I. R. 1957 Madras 212 and G. Valia Raja v. T. Vareed A. I. R. 1961 Kerala 293. ( 18 ) IN my view all these decisions are not required to be considered in view of the decision of the Supreme Court in the case of G. Appalaswamy v. B. Venkataramanayya A. I. R. 1984 Supreme Court 1728 The Supreme Court has negatived the contention that on the redemption of a usufructuary mortgage a tenant-mortgagee should always be directed to deliver actual or physical possession of the mortgaged property. In paragraph 5 of the judgment the Court has negatived the contention that there would be a merger of the interest. The said paragraph reads as under:" In our view there can be no merger of a lease and a mortgage even where the two transactions are in respect of the same property. It is well-settled that for a merger to arise it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease the estate that is outstanding in the lessor is the revision; in the case of a mortgage the estate that is outstanding is the reversion; in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage would be outstanding in the owner of the property and accordingly there would not be a complete fusion of all the rights of ownership in one person. This position in law as explained by the Bombay High Court in Narayana Dogra Shetty v. Ramchandra Shivram Hingne (1963) 65 B. L. R. 449 has been fully approved by this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa, AIR 1976 SC 1565 ". This position in law as explained by the Bombay High Court in Narayana Dogra Shetty v. Ramchandra Shivram Hingne (1963) 65 B. L. R. 449 has been fully approved by this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa, AIR 1976 SC 1565 ". (Emphasis added) while dealing with the contention on implied surrender the Court held that when the usufructuary mortgage was executed in favour of lessee-mortgagee whether there is implied surrender or not depends upon what was the intention of parties at the time of the execution of the mortgage-deed in favour of sitting tenant and the intention is to be gathered from the terms and conditions of the mortgage transaction in the light of surrounding circumstances of the case. The Court has further observed that the tenant who was cultivating the lands under a lease and who obliged his lessor by advancing monies to him to tide over his financial difficulties would give up his rights as a lessee no sooner redemption takes place does not stand to reason. ( 19 ) IN this case lease-deed Ex. 93 dated 19-10-59 is executed in favour of defendants Nos. 2 and 3. The mortgage-deed Ex. 52 is executed in favour of defendant No 1. Therefore it cannot be said that the lessee became the mortgagee or that there was merger of interest of lessee and mortgagee. The lease-deed which is in favour of defendants Nos. 2 and 3 provides that yearly rent of the suit premises is Rs. 2 101 lease period was for five years; the lessee was entitled to transfer lease-hold interest with permission of the owner; if the owner Mahendralal intends to join as a partner then a separate document would be executed and there are certain other conditions in the said document. This document shows that defendants Nos. 2 and 3 were tenants of the said premises. In 1961 only defendant No. 1 got mortgagees tight by the deed dated 27-4-61. Therefore there is no question of implied surrender or merger of lease-hold rights. The learned advocate Mr. Oza however. submitted that as such defendant No. 1 was a tenant of the said premises because he has admitted in his deposition that before the deed Ex. 52 was executed he was a tenant of the said premises. Therefore there is no question of implied surrender or merger of lease-hold rights. The learned advocate Mr. Oza however. submitted that as such defendant No. 1 was a tenant of the said premises because he has admitted in his deposition that before the deed Ex. 52 was executed he was a tenant of the said premises. As against this it is the say of the defendant No. 2 that defendant No. 6-firm was doing business in the said premises and that defendants Nos. 2 and 3 were the tenants of the said premises. In any case taking into consideration lease-deed Ex. 93 it cannot be said that defendant No. 1 was the only tenant of the premises when the mortgage-deed was executed. Hence in any view of the matter there is no question of implied surrender by the defendants Nos. 2 and 3. Apart from this aspect considering the document Ex. 52 also it is abundantly clear that there is no question of any implied surrender. The deed Ex. 52 recites that the transferee was in possession of the premises and the said possession is continued as purchaser of the land. The condition of re-purchase also nowhere provides that after re-purchase the executor would be entitled to have possession of the premises. It only provides that if the amount is paid within the specified period then the transferee would re-convey it and that the executors would re-purchase it. It nowhere provides that the possession of the deceased Mahendralal wrote a letter Ex. 94 wherein he has asked for physical possession immediately defendant No. 1 had replied that there was no question of handing over possession to him because the document also nowhere provides for it and that he was a tenant prior to the execution of the deed and the sale-deed was executed only for security of the amount. tn my view the absence of any term with regard to handing over possession at the time of the execution of the re-purchase document clearly runs counter to the implied surrender of the lessees right. Further for the mortgagee there was no reason to surrender lease hold rights after giving some money to the mortgagor and particularly when tenants rights are fully protected by the provisions of the Rent Act. Further for the mortgagee there was no reason to surrender lease hold rights after giving some money to the mortgagor and particularly when tenants rights are fully protected by the provisions of the Rent Act. In the above view of the matter it cannot be said that the order passed by the learned Judge in not directing defendants to deliver physical possession of the land to the plaintiffs is in any way illegal or erroneous. ( 20 ) IN the result First Appeal No. 1057 of 1978 and First Appeal No. 655 of 1978 are dismissed with no order as to costs. . ( 21 ) FIRST Appeal No. 645 of 1978 is partly allowed and the direction of the learned Judge of settling the accounts is set aside. It is directed that the plaintiff would be entitled to redeem on payment of Rs. 15 0 as mentioned in Ex. 52. To this extent the judgment and decree passed by the learned Judge is modified. The rest of the judgment and decree is confirmed. There will be no order as to costs of this appeal. .