1981 (12) TMI 175 - SC - Indian Laws

Summary

Issues Involved:
1. Right to redeem the mortgaged property.
2. Relinquishment of rights by the mortgagor's heirs.
3. Suit barred by limitation and estoppel.
4. Indivisibility of the mortgage.
5. Abatement of the suit due to non-substitution of deceased defendant's heirs.
6. Expenditure incurred on repairs by the mortgagee.

Detailed Analysis:

1. Right to Redeem the Mortgaged Property:
The primary issue was whether the plaintiff had the right to redeem the mortgaged property. The trial court initially dismissed the suit, holding that the plaintiff had no right to redeem as he had not proved the purchase of the property benami in the name of Shantilal. However, the Assistant Judge on appeal found that the plaintiff had indeed purchased the equity of redemption benami and was entitled to redeem the property. This finding was upheld by the Division Bench of the High Court, which decreed the suit for redemption.

2. Relinquishment of Rights by the Mortgagor's Heirs:
The defendant argued that the plaintiff's predecessors, including Chimanrai, his widow Chhotiba, and his daughter Taralaxmibai, had relinquished their rights in the property, thereby estopping the plaintiff from claiming redemption. The trial court and the Joint Civil Judge, Jr. Division, initially found that the heirs had relinquished their rights. However, the Assistant Judge on appeal found that the endorsements made by the heirs did not amount to relinquishment of their rights. The Division Bench of the High Court agreed, holding that the endorsements were mere admissions and did not constitute estoppel.

3. Suit Barred by Limitation and Estoppel:
The defendant contended that the suit was barred by limitation and estoppel. The trial court and the Joint Civil Judge, Jr. Division, initially agreed. However, the Assistant Judge and the Division Bench of the High Court found that the suit was within the limitation period and not barred by estoppel. The Division Bench specifically noted that estoppel deals with questions of fact and not rights, and that none of the conditions for estoppel under Section 115 of the Evidence Act were satisfied.

4. Indivisibility of the Mortgage:
The defendant argued that the mortgage could not be split and must be treated as one indivisible security. The Division Bench of the High Court, however, held that the suit could proceed against the surviving defendant No. 1, as the plaintiff was prepared to pay the entire mortgage amount. The court referred to Section 60 of the Transfer of Property Act and Order 34, Rule 1 of the CPC, which allow for such a situation.

5. Abatement of the Suit Due to Non-Substitution of Deceased Defendant's Heirs:
During the pendency of the appeal, defendant No. 2 died, and his heirs were not brought on record. The District Judge held that the appeal abated only as against defendant No. 2 and could proceed against defendant No. 1. The Division Bench of the High Court upheld this view, stating that the suit against the surviving defendant No. 1 was maintainable despite the abatement.

6. Expenditure Incurred on Repairs by the Mortgagee:
The defendant claimed that substantial amounts were spent on repairs and sought reimbursement. The trial court found that the defendant had spent Rs. 3374-2-0 on repairs. The Assistant Judge on appeal held that the plaintiff was entitled to redeem the property on payment of Rs. 4724-2-0, which included the mortgage money and the expenditure on repairs. The Division Bench of the High Court upheld this finding.

Conclusion:
The Supreme Court upheld the judgment of the Division Bench of the High Court, dismissing the appeal and confirming the plaintiff's right to redeem the mortgaged property. The court found no merit in the contentions regarding estoppel, indivisibility of the mortgage, and abatement of the suit. The appeal was dismissed with costs.