VALMIKI J. MEHTA, J. - (1.) THESE are two appeals, filed by the plaintiff and the defendant respectively, against the impugned judgment of the Trial Court dated 2.12.2002. By the impugned judgment, the Trial Court held that the mortgaged shops have been validly mortgaged to the financial institution, namely, Haryana Financial Corporation / defendant for recovery of dues.
(2.) THE impugned judgment has also by reference to the mortgage documents held that mortgage was only of the shop Nos. 3 and 4, and there was no mortgage of the basement mentioned in the mortgage documents. It was therefore consequently held that the defendant/Haryana Financial Corporation has no rights to the basement. The facts of the case are that the appellant in RFA No.271/2003 and the plaintiff in the suit, prayed for a declaration to the effect that the mortgage of shop Nos. 3 and 4 and basement situated in khasra No.66/1, village Mangolpur Kalan, Delhi executed by Ms. Sunita, the sole partner of M/s Bhawna Home Furnishing was null and void because the subject shops formed part of a larger joint family property which was never partitioned, and therefore, the specific shops could not have been mortgaged to the defendant in the suit. Ms. Sunita is the daughter of Sh. Labh Singh Chaudhary; brother of the plaintiff. The Trial Court has held that there was a valid mortgage with respect to shop Nos. 3 and 4, and to which finding I also agree inasmuch as it is not disputed that the suit property as a whole belonged to two brothers, namely, Sh. Anoop Singh (plaintiff) and the father of Ms. Sunita, Sh. Labh Singh Chaudhary. Sh. Labh Singh Chaudhary had transferred rights in the shop Nos. 3 and 4 by means of certain documentations, and pursuant to which the defendant / Haryana Financial Corporation accepted the mortgage created with respect to shop Nos. 3 and 4. During the course of hearing of the appeal, counsel for the appellant stressed only one aspect that without actual partition, since the subject shops have been mortgaged in favour of the defendant / Haryana Financial Corporation, it should be observed by this Court that when there is an actual partition between the plaintiff / Sh. Anoop Singh and brother-Sh. Labh Singh Chaudhary, then Sh. Labh Singh Chaudhary will get a lesser value on such partition and it will be presumed that for the value of the share to be allocated to Sh. Labh Singh Chaudhary, he already has received towards that share the value of the shop Nos.3 and 4.
(3.) ACCORDINGLY, so far as RFA No.271/2003 is concerned, it is disposed of with the observation that whenever there is a partition of the property, which is said to be of about 2,000 sq. yds, of Sh. Anoop Singh and Sh. Labh Singh Chaudhary, situated in khasra No.66/1, village Mangolpur Kalan, Delhi, then, the appellant / plaintiff, on establishing that he has otherwise received no earlier share, will have a larger share from the balance portion of the property excluding the shop Nos. 3 and 4 i.e. the share which will already be deemed to be allocated to Sh. Labh Singh Chaudhary and who will thus be entitled to a lesser share considering that with respect to his share, Sh. Labh Singh Chaudhary already has taken ownership rights of the subject shop Nos. 3 and 4. So far as RFA No.344/2003 is concerned, counsel for the appellant / Haryana Financial Corporation, could not seriously dispute that in the mortgage documents, what is mortgaged are only the shop Nos. 3 and 4, and there is no mention of the mortgage of the basement. If that be so, mortgage would only be valid with respect to the shop Nos. 3 and 4 and not with respect to the basement under the shops. Merely because a valuation report was given which included the shops and the basement, would not mean that basement would also be mortgaged inasmuch as it is very much possible that the basement may have been originally intended to be mortgaged, however, the same would not have been mortgaged, inasmuch as, the mortgage documents reflect mortgage of only of shop Nos. 3 and 4.;