Judgement Key Points

DUTTA, J.—This second appeal is directed against the judgment and decree of the learned District Judge, Jodhpur, dated 8th July, 1966, by which the two appeals Nos. 25 of 1962 and 137 of 1962, filed by the defendants against the preliminary decree and the final decree passed in a suit for redemption by the Additional Civil Judge, Jodhpur, were dismissed with costs and the cross-objections filed by Sardar Mal and his son Sujan Mal were partly accepted and the amount of mesne profits at the rate of Rs.60/*, p. m. with effect from the date of final decree till the date of the judgment of the learned District Judge, was added in the decree as payable by the defendants to the plaintiffs.

2. The relevant facts giving rise to the suit for redemption, out of which this appeal arises, may be described as follows—

Sardar Mal and his son Sujan Mal filed a suit for redemption of a shop in dispute situated in Sire Bazar, Jodhpur, on the basis of a mortgage-deed (Ex. 25) executed by Mst. Bugi widow of Ladu Ram in favour of Chunni Lal Baheti on Falgun Sudi 10 Samvat-year 1957 (28.2.1901). The suit was filed against Manak Lal and Moti Lal sons of Gianni Lal and their mother Mst. Dhapi Bai alias Tulsi Bai. The allegations in the plaints were that one Ladu Ram owned and possessed a shop situated in Sire Bazar, Jodhpur. He died in Samvat-year 1956 leaving behind his widow Mst. Bugi and his two married daughters Mst. Sayar Kanwar and Mst. Udi. He had two sons Narain Das and Ranchor Das. During the life time of Laduram Ranchor Das went in adoption to another family at Laskar and Narain Das went away from his house and was not heard of there-after by his parents and others, who would naturally have heard of him, if he had been alive. After Ladu Rams death, his widow Mst. Bugi took Sardar Mal plaintiff in adoption and kept him with her but she could not execute an adoption deed in his favour. She went to Laskar for bringing back the will executed in favour of Ranchor Das but in Laskar she fell sick and died in the month of Baisakh Samvat-year 1971 Before her death, she, however, directed her daughter Sire Kanwar and close relative Goru Ram Jajoo to execute a deed of adoption in favour of Sardar Mal on her behalf and get it duly registered. In pursuance of her directions the daughters of Mst. Bugi executed a deed of adoption in favour of Sardarmal Jajoo and got it duly registered by the then registering authority, since then Sardarmal was being treated as an adopted son of Laduram. The alternative case of the plaintiff Sardar Mal was that if for any reason his adoption is not considered to be valid in the eye of law, he became owner of the properties of Ladu Ram, because Ladu Rams nearest reversioner Goru Ram relinquished his claim to Ladu Rams property in his favour on 24-1-1922 and on Ashad Sudi 9, Samvat year 1979 by executing a will in his favour. Similarly Kanhaiya Lal son of Ranchor Das also relinquished his claim, if any, to Ladu Rams property in his favour by executing a registered deed of relinquishment on 2nd July, 1936.

3. On 15th January, 1954, the defendants put forward a plea that the old mortgage-deed of Samvat-year 1957 was substituted by another mortgage deed of Samvat-year 1968 and that the plaintiffs suit was not maintainable on the basis of the old mortgage. Sardarmal plaintiff, therefore, amended his plaint and based his suit upon the substituted mortgage deed dated 17th December, 1911, which was executed by Mst. Bugi in favour of Chunnilal, father of Motilal and Manaklal defendants for a sum of Rs. 4000/-. The defendants thereupon submitted a written statement, wherein the mortgage was admitted but the factum and validity of adoption of Sardarmal by Mst. Bugi was challenged. The defendants further alleged that Goru Ram was not the nearest reversioner of Laduram and that he did not execute any will in favour of Sardarmal in respect of the property of Ladu Ram. Likewise, they denied that Kanhaiya Lal had executed any deed of relinqui

Click Here to Read the rest of this document