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1973 Supreme(Raj) 126

S.N.MODI
Asharam – Appellant
Versus
Bhanwarlal – Respondent


Advocates:
A.L. Mehta, for Appellants; Ganpatsingh Mehta, for Respondent.

Judgement

JUDGEMENT :- This is a second appeal by the plaintiffs Asharam and Kishanlal in a suit for redemption. Both the courts below have dismissed the suit.

2. The relevant facts lie within a narrow compass and they are stated as follows : The property in suit was owned by plaintiff No. 1 Asharam. In Smt. year 2003 he borrowed a sum of Rs. 300/- from the defendant-respondent and executed a usufructuary mortgage of the suit property in security thereof. Subsequently, by a deed dated 9-5-1949 the suit property was sold by Asharam to plaintiff No. 2 Kishanlal. On 24-8-1964 the plaintiff-appellants brought a suit for redemption of the mortgage alleging that the defendant had declined to redeem the mortgage. The defendant-respondent resisted the suit and alleged that subsequent to the mortgage, by agreement dated 18-6-1948 (Jeth Sudi 12, Smt. year 2004), plaintiff No. 1 Asharam agreed to sell the said property to him for Rs. 850/- and after adjusting the mortgage amount of Rs. 300/-, he (defendant) (plaintiff ?) received Rupees 550/- in cash from him (plaintiff No. 1) (defendant ?). Both the Courts below have held that the agreement dated 18-6-1948 entitled the defendant to the benefit











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