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G.M.LODHA
MAINA DEVI – Appellant
Versus
THAKUR MANSINGH – Respondent
Key Points: - The mortgage clauses (4) and (10) are treated as clogs on the equity of redemption. (!) - The mortgagee is not entitled to possession after redemption where such clauses exist. (!) - The decision discusses precedents including Gambangi Appalaswamy Naidu v. Behara Venkataramanayya Patro and G. Appalaswamy v. B. Venkataramanayya to determine tenancy rights post-redemption. (!) (!) - The Rajasthan Full Bench reference is cited regarding tenant protection for mortgagee in possession after redemption under statutory acts. (!) - The appellate court upheld redemption and possession to plaintiffs, dismissing the appeal with costs. (!) - The court considered that the mortgagor cannot be deprived of equity of redemption by perpetual tenancy claims post-redemption. (!) - The court allowed six months for vacating with conditions. (!) - No prior tenancy claim by defendant was established; mortgagee possessed only as mortgagee, not as tenant prior to mortgage. (!)
G. M. LODHA, J.
( 1 ) THIS is a Civil first appeal against the judgment and decree dated the 26th Jan. 1980 passed by the District Judge, Jaipur City, Jaipur by the defendant appellant-Smt. Maina Devi against the plaintiff-respondents.
( 2 ) BEFORE this Court, in this first appeal, the decree in Civil Suit No. 11/78 granting redemption of mortgage and the possession of the property on it is being challenged.
( 3 ) THERE is no dispute so far as the facts are concerned because, whatever documents have been exhibited in the case in the form of first mortgage and second mortgage making it clear that the parties entered into mortgage deed at two different points of time.
( 4 ) THE important feature of this case is that so far as the record goes, the second mortgage deed for Rs. 20,000/- was executed on 2nd August, 1975, and by this whereas on the one hand the first mortgage deed dated the 26th May, 1973 was redeemed and that amount was included in this, the property which was now to be mortgaged was specified in this.
( 5 ) THE whole controversy now which has been raised, relates to the question, whether on redemption of mortgage, the plaintiff would be entitled to possessio
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