An agreement of sale of right of redemption executed after the mortgage deed is not a clog on the equity of redemption.

1. - This is a second appeal arising out of a redemption suit filed by the respondent No. 1 Shrimati Kanchan Bai against the appellants and others. The mortgage sought to be redeemed was executed on 24-3-1943 for sum of Rs. 2200/-by Dault Ram, father-in-law of the plaintiff Smt. Kanchan Bai, in favour of Balabux and Banshidharji of whom the appellants are the hairs. The mortgage property is whole of Talia No 143 and half of Taliano. 144 sjtuatvd in Bhopalganj, Bhilwara. Under the terms of the mortgage deed Ex. A 1, the morgagees were given a right to construct a house on the mortgagee land & the morgagor was only to redeem after payment of the mortgage amount along with cost of construction of the house as per entries in the account books of the mortgagees. On the same day i.e. March 24, 1943 an agreement Ex. A2 was executed by Daulat Ram, the mortgagor in favour of the morgagees on Annas 4 stamp, under which it was agreed that any amount may be spent over construction on the mortgaged property and any constructions may be raised, after the house is constructed thereafter a sale deed was to be executed in favour of mortgagees for Rs. 11/-only. Thereafter the mortgagees were to have all ownership rights. The respondent No. 1, claiming that under a gift deed dated July 2, 1960 Ex. 1. Daulat Ram, her father in law transferred to her or his right of redemption of mortgage filed a suit for redemption in the court of Civil Judge, Bhilwara on April 12, 1965.

2. The claim for redemption made by Smt. Kanchan Bai was contested by the appellants on various grounds. The execution of the gift deed Ex. 1 by Daulat Ram was denied and a case was set up that the mortgage property was ancestral property of Daulat Ram and his sons and as such the gift by Daulat Ram in favour of Smt. Kanchan Bai was void. It was also stated in the written statement that in the year 1960, Daulat Ram had no saleable interest because on Magsar Sud 5, Samvat year 2004, corresponding to December 17, 1947, under Ex. A3 he had received Rs. 11/-as sale price of his right of redemption as had been agreed under Ex. A2. Since then they became absolute owners of the property. They also set up a case that their right as full owners was asserted by them by taking objections under Order 21 Rule 58 (Miscellaneous case No. 9 of 1961, District Judge, Bhilwara).The objections were allowed on April 13, 1964.

3. The respondent Smt. Kanchan Bai filed rejoinder to the written statement in which she denied the execution of Ex. A2 and A3 by Daulatram and receipt of Rs. 11/- by him. During the pendency of the suit Daulatram, the mortgagor died. The case was transferred to the court of Additional Munsif No. 2, Bhilwara.

4. The trial court under its judgment and decree dated November 16, 1970 passed preliminary decree for redemption of the suit property in favour of Smt. Kanchan Bai (Plaintiff) and against the appellants but on payment of Rs. 23,499.62 p. by Smt. Kanchan Bai to the mortgagees for mortgage amount and for cost of construction and improvement and Smt. Kanchan was directed to deposit the amount in the court within three months or within such further time as may be extended by the court. On depositing the amount as directed Kanchan Bai was directed to file an application for final decree.

5. The appellants filed an appeal and cross appeal was filed by Smt. Kanchan Bai so far as amount of cost of construction and improvement was concerned. When both appeals were pending in the court of Additional District Judge, Bhilwara, an application for amendment of the written statement was filed on behalf of the appellants seeking incorporation in para 5 of the written statement, a plea that suit talias were undivided joint Hindu family property and deceased Daulatram was one of the co-parceners and was not competent to gift the property to Smt. Kanchan Bai, his daughter-in-law and gift Ex. 1 made in favour of Smt. Kanchan Bai was void ab-initio & did not confer any right in her. Thus,