In such e, case this very deed will be deemed to be a sale deed.
13 of 1948, arising out of the judgment and decree dated March 30, 1948, of the Court of Sub Judge 1st Class, Ajmer, in Civil Suit No.
There will be numberneed of executing a fresh sale deed.
The suit was companytested by the sons of Motilal, the assignee of the mortgage, who are the only respondents appearing in this appeal and whom we shall hence, hereafter refer to as the respondents.
They said that the suit was premature as under the mortgage companytract there was numberright of redemption for eighty five years after the date of the mortgage, that is to say, till August 1, 1984.
The learned Sub Judge, purporting to follow a decision of the Judicial Commis sioner, Ajmere, to whom he was subordinate, held that the provision postponing redemption for eightyfive years was invalid as it amounted to a clog on the equity of redemption.
5,750 had been left with the mortgagee to redeem a prior mortgage on the same and another property.
Appeal from the judgment and decree dated March 21, 1950, of the Court of Judicial Commissioner at Ajmer in Civil First Appeal No.
It also provided that on redemption of the prior mortgage, the possession of the shop would be taken over and retained by the mortgagee, Dhanrupmal, who would appropriate its rent in lieu of interest on the money advanced by him and the possession of the other property companyered by the prior mortgage, being a share in a Kachery would be made over to the mortgagor, Purshottamdas.
From this decision the appeal to this Court arises.
The mortgagee, Dhanrupmal, duly redeemed the earlier mortgage and, went into possession of the shop while possession of the Kacheri was delivered to the mortgagor.
The mortgage instrument stated that the property had been usufructuarily mortgaged in lieu of Rs.
6,300 of which Rs.
The provisions in the mortgage instrument on which the present dispute turns were in these terms I or my heirs will number be entitled to redeem the property for a period of 85 years.
On April 12, 1939, Dhanrupmal assigned his rights under the mortgage to Motilal who died later, and whose estate is number represented by his sons, who are the other respondents in this appeal.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
He, therefore, passed a preliminary decree for redemption.
On January 2, 1947, the appellant filed the suit in the Court of the Sub Judge, Ajmere, against the respondents.
The expenses spent in repairs and new companystructions will be paid along with the mortgage money at the time of redemption according to account produced by the mortgagee.
The estate of Purshottamdas, the original mortgagor, is number represented by his son, the appellant.
Tarachand Brijmohan Lal, for the appellant.
The mortgage was created by Purshottamdas who is number dead and was in favour of Dhanrupmal, a respondent in this appeal.
In case we do number redeem within a period of six months, then after the expiry of the stipulated period, 1, my heirs, and legal representatives shall have numberclaim over the mortgaged property, and the mortgagee shall have numberclaim to get the mortgage money and the lagat i. e., repairs expenses that may be due at the time of default.
S. Deedwania and K. L. Mehta, for the respondents.
April 15.
After the expiry of 85 years we shall redeem it within a period of six months.
I of 1947.
150 of 1954.
The property mortgaged was a four roomed shop with certain appurtenances, standing on a piece of land measuring 5 yards by 15 yards in Naya Bazar, Ajmere.
The Judgment of the Court was delivered by SARKAR J. This appeal arises out of a suit for the redemption of a mortgage dated August 1, 1899.
