according to the defendants the house was actually sold to madho ram and was number mortgaged.
6442/8/ as interest rs.
9.87 n.p.
4 dated 27th july 1922 must be companystrued along with ex.
4 dated 27th july 1922 was a sale deed and number a mortgage deed.
12/12/ per month out of which the rent amounting to rs.
it was alleged that in the locality where the house was situated there was a custom of paying haqe chaharum and to avoid that payment the original deed dated 27th july 1922 was drafted and executed in the form of a mortgage though it was actually an out right sale.
clause 2 provides a period of twenty years for redemption of the mortgage.
the possession of the house has been delivered to the said mortgage mahajan money lender .
in support of these appeals it was companytended by mr.
if the whole or part of the interest remains unpaid we will pay at the time of redemption.
the trialcourt accordingly decreed the plaintiffs suit for redemption on payment of rs.
the plaintiff prayed that the decree of the lower appellate companyrt should be set aside and the decree of the trial companyrt should be restored.
6/ which was the agreed usufruct of the house in suit was to be adjusted and the mortgagor was to pay rs.
radha bai sold the house in dispute to the plaintiff on 2nd february 1953 and executed a sale deed.
6/12/ per month he delivered possession of the house to madho ram who let out the house on a monthly rent of rs.
against the judgment and decree of the lower appellate companyrt both the plaintiff and the defendants filed appeals before the high companyrt.
appeals by special leave from the judgment and order dated april 27 1964 of the allahabad high companyrt in second appeals number.
the mortgagors will pay the balance of rupees six annas twelve month by month to the said mortgagee after deducting the rent of rupees six after giving the possession of the said house and shop.
clause 4 provides that we will go on paying the said mahajan the sum of rupees six twelve annas the balance of the interest monthly.
6/12/ per month from 27 7 1922 till the plaintiff deposits the entire sum due under this decree.
the companyts of the trial court are made easy.
the issue framed by the high companyrt was have the defendants become the owners of the property in dispute by adverse possession ?
a 25 and a after remand the lower appellate companyrt held that the deed dated 27th july 1922 was a mortgage deed and number a sale deed and therefore the plaintiff was entitled to re deem the mortgage.
held to be a mortgage the mortgagees were entitled to get the payment of rs.
the lower appellate court made the following order the appeal is allowed with half companyts in this way that the suit is decreed for the redemption of the mortgage in question if the plaintiff pays within six months rs.
kunta died leaving mst.
prajawat paid before this suit and any prajawat paid by the defen dants during the pendency of this suit till the plaintiff deposits the entire sum due under this decree and the interest at the rate of rs.
clause i states that the said sum of rupees seventeen hundred half of which is rupees eight hundred and fifty will carry interest at the rate of twelve annas per cent monthly.
4940 and 3660 of 1961.
by its judgment dated 27th april 1964 the high companyrt dismissed the second appeal preferred by the defendants but allowed the plaintiffs appeal and set aside that judgment of the lower appellate companyrt and restored the judgment of the trial companyrt.
radha bai as dwarka prasads heir.
the document ex.
the terms of the mortgage deed were that the mortgagor was to pay interest of rs.
sinha that the deed ex.
the parties agreed that the mortgage would be redeemable within twenty years after paying the principal amount and that portion of interest which was number discharged by the usufruct and other amounts.
the present appeals are brought by special leave against the judgment of the allahabad high companyrt dated 27th april 1964 in second appeals number.
p. goyal and g. nabi untoo for the respondent in both the appeals .
when dwarka prasad was unable to pay the amount of rs.
2315 as companyts of repairs etc.
the high companyrt further remanded that case of lower appellate companyrt with the direction that the defendants be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage.
the mortgagors dwarka prasad and mst.
1709/14/ .
the lower appellate companyrt further held that the defendants had failed to prove that they had acquired title by adverse possession.
a. 26 which forms part of the same transaction and so companystrued the transaction was number a usufructary mortgage but was an outright sale.
6/12/ per month in cash towards the balance of the interest.
1700 as principal rs.
the defendants companytested the suit on the ground that madho ram was number the mortgagor number were the defendants mortgagees.
civil appellate jurisdiction civil appeals number.
457 and 458 of 1966.
the defendants on the other hand prayed that the decree of the lower companyrts should be set aside and the plaintiffs suit should be dismissed with companyts.
1700 in favour of madho ram.
the plaintiff therefore became entitled to redeem the mortgage and asked the defendants to render accounts.
against the judgment of the trial companyrt the defendants preferred an appeal before the district judge varanasi who allowed the appeal and dismissed the plaintiffs suit.
the defendants also pleaded that if the deed dated 27th july 1922 was.
4940 and 3660 of 1961.
it was pointed out that there was a subsequent deed of sale dated 8th october 1922 ex.
the plaintiff took the matter in second appeal to the high companyrt which framed an issue and remanded the case back to the lower appellate companyrt for a fresh decision.
kunta his maternal grand mother executed a possessory mortgage deed of the disputed house for rs.
p. sinha and shaukat hussain for the appellants in both the appeals .
1700 from madho ram father of the defendants and that on 27th july 1922 dwarka prasad along with one mst.
the companytention was that the document ex.
a 26 which is named titimma bainama.
let the preliminary decree under order 34 r.7 c.p.c.
the judgment of the companyrt was delivered by ramaswami j. in the suit which is the subject matter of these appeals the plaintiff alleged that one dwarka prasad took a loan of rs.
the high companyrt directed the lower appellate companyrt to decide the question of admissibility of exts.
4 recites that in companysideration of money advanced the executants mortgage the said house bhog bhandak bearing number 64/71 situate mohalla gola dina nath.
the sum of rupees six will be deducted towards rent monthly from the interest which will accrue.
clause 6 of the document stipulates that the companyt of repairs will be borne by the mortgagors.
