Back
High Court Of Rajasthan
Judgename : S.K.SHARMA,.
NAND LAL - Appellant
Versus
RAMESH CHAND - Respondent
C. R. F. A. No. 75 Of 1977
Decided On : 02/24/1999
TRANSFER OF PROPERTY ACT - SECTION 53A - INTERPRETATION - APPLICABILITY - REDEMPTION OF MORTGAGE - POSSESSION OF PROPERTY - READINESS AND WILLINGNESS TO PERFORM CONTRACT.
Fact of the Case:
Plaintiffs filed a suit for redemption of mortgage against the defendants, alleging that the defendants were in possession of four shops mortgaged by the plaintiffs' father to the defendants' father. The defendants claimed ownership of two of the shops, asserting that they had purchased them from the plaintiffs' father and had been in possession as owners for more than 12 years.
Finding of the Court:
The trial court decreed the suit, holding that the defendants were not the owners of the two shops and that the plaintiffs were entitled to redeem the mortgage. The defendants appealed.
Issues: 1. Whether the defendants were the owners of the two shops in question. 2. Whether the defendants were entitled to reimbursement for repairs made to the shops.
Ratio Decidendi: The court held that the defendants were entitled to rely on Section 53A of the Transfer of Property Act as a defense to the plaintiffs' claim for redemption of the mortgage. The court found that the defendants had performed their part of the contract by paying the purchase price and taking possession of the shops, and that they were ready and willing to perform the remaining part of the contract by executing a registered sale deed. The court also held that the plaintiffs were not entitled to rely on Section 60 of the Transfer of Property Act, which gives mortgagors the right to redeem mortgaged property, because the defendants' possession of the shops under the contract of sale extinguished the plaintiffs' right of redemption.
Final Decision: The court allowed the defendants' appeal in part, holding that the plaintiffs were not entitled to redeem the mortgage in respect of the two shops in question.
SHIV KUMAR SHARMA, J.
( 1 ) MEANINGFUL question that arises in the instant appeal is whether transferee can avail Section 53 A of the Transfer of Property Act, 1882 as a shield or as a sword ? The parties shall be referred hereinafter in the same manner as they were arrayed in the suit.
( 2 ) THE defendants seek to challenge the decree and judgment dated April 14, 1977 of the learned Additional District Judge, Jaipur whereby the suit for redemption of mortgage instituted by the plaintiffs was decreed allowing them to redeem the mortgage after making payment of Rs. 13,999/- till August 15, 1977 to the defendants.
( 3 ) BRIEF resume of the facts is that the plaintiffs filed suit against the defendant on november 10, 1971 with the averments that shri Roshan Lal, the father of plaintiffs had mortgaged with possession four shops and executed as many as five mortgage deeds in favour of Shri Narain Bux the father of the defendants. In para 2 (ka) of the plaint details of mortgage deeds were incorporated thus -first mortgage deed for shop No. 1 was executed on March 21, 1942 for Rs. 1,799/ -. Second deed again for the said shop No. 1 was executed on August 31, 1945 for Rs. 2,000/ -. Third deed for shop No. 2 was executed on August 31, 1945 for Rs. 3,200/ -. Fourth deed for shop No. 3 was executed on August 31, 1945 for Rs. 3,200/ -. 5th deed for shop No. 4 was executed on August 16, 1946 for Rs. 3,800/ -. Plaintiffs prayed to pass decree for redemption of mortgage after determining the amount due.
( 4 ) THE defendants in their written statement pleaded that in so far as shops No. 2 and 3 are concerned they are the absolute owner. It was also averred that after execution of first and second mortgage deeds the father of the defendants got repaired shop No. 1 after spending Rs. 1,700/ -. The repairs and constructions were made with the consent of the father of the plaintiffs. In respect of second shop it was pleaded that plaintiffs father roshan Lal agreed to sell it to the father of the defendants for Rs. 4,501/ -. The possession of the said shop was delivered to the father of the defendants and deed was executed on February 2, 1948. The agreement to sell in respect of third shop was also executed on February 19, 1946 by the father of the plaintiffs after receiving Rs. 4,501/- and possession of the said shop was handed over to the defendants father. The defendants father performed his part in accordance with both the agreements and the defendants had been in the continuous possession of both the shops as owner for more than a period of 12 years. In so far as fourth shop was concerned repairs were made by the defendants with the consent of the plaintiffs 1 and 2. It was also pleaded that after the death of Roshan Lal his mother became the owner. The mother of Roshan Lal had also died therefore the suit was not main tainable without impleading the legal representatives of the mother of Roshan Lal.
( 5 ) ON the basis of the pleadings of the parties, the learned Trial Court framed as many as seven issues, thus : (1) Whether the defendants are owners of second and third shops, details of which have been shown in the plaint ? (2) Whether the defendants had got repaired shops incorporated in the first and second mortgage deeds and whether they are entitled to recover from the plaintiffs Rs. 1,700/- spent by them in making repairs? (3) Whether the defendants are entitled to Rs. 3,000/- spent by them in repairing the shop incorporated in fifth mortgage deed ? (4) Whether the suit is not maintainable without impleading the legal representatives of the mother of late Roshan Lal? (5) Whether the plaintiffs have right to redeem mortgage after making payment of Rs. 13,999/- or any other amount determined by the court? (6) Whether the suit is barred by limitation ? (7) Relief.
( 6 ) THE learned Trial Court decided all the issues in favour of the plaintiffs and decreed the suit vide the impugned decree and judgment.
( 7 ) 1 have reflecte
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
