G.L. Chopra, J. -
(1.) THESE cross -appeals arise out of a suit for redemption of a mortgage made on 28th Poh, 1955 Bk., by one Mst. Utami, now represented by Shadi Ram, plaintiff. The principal amount secured by the mortgage was Rs. 2,000/ - and interest at Rs. 1/ - per cent, per mensem was stipulated. Towards the interest the mortgagor was to be credited with an aggregate amount of Rs. 55/ - per annum as rent for mortgagee's possession. The property mortgaged comprised three shops situate near Arya Smaj, Patiala. The deed further provided that the mortgagor would pay for the costs of 'shakasht rekhat' to the property together with Interest at annas 12/ - per cent, per mensem at the time of redemption, and also that the mortgagees would be entitled to make improvements by way of raising 'Chobaras etc' on the shops.
In his suit for redemption brought on 12th Sawan, 2003, the mortgagor claimed possession of the shops only on payment of the principal i.e., Rs. 2000/ -. The defendants, who are the sons of one and nephews of the other mortgagee, denied the mortgage and alleged that they were the owners of the suit property and were dealing with it since long past and had rebuilt it as such. An alternate plea was also taken that in case the mortgage be proved they, according to the terms of the mortgage, were entitled to Rs. 13,000/ - for cost of improvements and interest thereon, in addition to the principal amount secured together with interest. The additional amount by way of costs on improvements that they thus claimed in the alternative was Rs. 42,175/ -.
The District Judge, Patiala, to whose court the case was transferred as it exceeded the pecuniary jurisdiction of the Sub -Judge before whom it was initially instituted, decided the preliminary issues in favour of the plaintiff, found the mortgage proved and passed a preliminary decree for redemption on 21 -7 -1950. By the final decree the learned District Judge has now allowed the plaintiff to get possession of the suit property on payment of Rs. 6936,8/ -. The stipulated rate of interest on the principal has been reduced to Rs. 7 1/2 percent, per annum, that being the maximum fixed for secured loans by the Patiala Relief of Indebtedness Act (No. 5 of 1939). Calculated at this rate the amount of interest comes to Rs. 7,741/8/ -. Deducting therefrom Rs. 2,805/ - for rent due to the mortgagor at the rate of Rs. 55/ - per annum, the amount of interest due to the mortgagees was reduced to Rs. 4,936/8/ -, and adding the principal to it, the learned District Judge arrived at the figure of Rs. 6,936/8/ -. The mortgagees claim for cost of improvements has been rejected on the ground that neither under the terms of the mortgage nor under the law they were entitled to demolish and rebuild the shops.
(2.) IT is this final decree against which the parties have appealed. The plaintiff -mortgagor appeals for the reduction of interest by Rs. 1,786/8/ - on grounds which I need not reiterate, as they are not pressed. The mortgagees in their appeal pray for the amount payable to them to be enhanced by Rs. 38,350/ - ; Rs. 13,000/ - as cost of improvements and Rs. 25,350/ - interest thereon at Rs. 7 1/2 per cent, per annum. The case of the mortgagees -appellants is that by the terms of the mortgage they were given a free choice to reconstruct the shops as they desired, and since the shops were in a dilapidated condition on the date of mortgage they demolished and rebuilt one of them at a cost of Rs. 3,000 -in 1960 Bk. and the others in 1977 Bk. at an expense of Rs. 10,000/ -. On behalf of the appellants their Learned Counsel. Shri Atma Ram, contends that the improvements, which are permanent in nature, had greatly increased the rental as well as the saleable value of the shops and hence the mortgagor before getting possession thereof must pay for their cost. As regards the mortgagees right to effect improvements counsel relies on the stipulation in the mortgage -deed and in the alternative on the provisions contained in Ss. 63A and 72(b), Transfer of Property Act. The relevant portion of the mortgage -deed is as follows:
Shakasht rekhat bazimma murtehnan hogi - Jis qadar lagat lagegi barwaqt waguzari mai sood bashrah -/12/ - per cent babat lagat murtehnan ko ada ki jawegi...... Murtehnan ko ikhtiar hai keh dukanat marhuna par hasb khahish tamir karen, yani chobara waghaira jo kuchh chahen bana lain.
(3.) THIS is sought to be interpreted to mean that the mortgagees had full and unrestricted authority to raise any structure they pleased, and even to demolish and rebuild the shops according to their own design and requirements. Reliance in support of the argument is placed on - 'Kharati Ram v. Dina Nath',, AIR 1927 Lah 815 (2) (A). The facts of that case, however, were very much different. There, the mortgaged property was found by the local Municipal Committee to be in a dangerous condition and, therefore, a notice under the Punjab Municipal Act was served on the mortgagees to demolish it within six hours. Part of the house fell down before the rest was demolished. The mortgage was for Rs. 600/ - end it provided that the mortgagee would be entitled to do 'muramat shakasht rekhat' to the house and add the expenses incurred thereon', with interest at the stipulated rate, to the amount due under the mortgage. The house, as rebuilt at a cost of Rs. 1,120/ -, was not larger than the one that existed at the time of mortgage, though it was better constructed.
The mortgagor did not contend that when the house was pulled down it was not necessary to do so and to reconstruct it, but urged that the ruinous condition of the house was due to the action of the mortgagee in not keeping it in good condition by doing ordinary repairs, and, therefore, even if the mortgagee was otherwise entitled to claim the expenses of rebuilding, he was not entitled in the particular case by virtue of his default. This plea of the mortgagor was rejected as the same was urged for the first time in the second appeal before the High Court and there was no evidence on record to enable the Court to come to the conclusion that the mortgagee neglected to repair the house and thus allowed it to fall into a state of disrepair. It was, therefore, held that under the terms of the mortgage -deed the mortgagee was entitled to the cost of rebuilding the house and also to interest thereon. Particular stress is being laid on the following observation of Jai Lal J. in his judgment:
We think that the condition that the mortgagor shall pay the cost of 'muramat shakasht rekhat' with interest, means that he shall pay not only for the ordinary repairs but also the expenses Reasonably incurred in rebuilding the whole or a portion of the house mortgaged.
But this has to be read and interpreted in the flight of the facts of the particular case. It cannot, in my view, be regarded to mean that the phrase 'muramat shakasht rekhat' includes destruction of the mortgaged property by the mortgagee himself and at his own sweet will, irrespective of its nature and condition. The stipulation that the mortgagor shall pay the cost of 'shakasht' (breakage) and 'rekhat' (destruction) cannot be taken to mean that the mortgagor thereby binds himself to pay the expenses which the mortgagee may incur in breaking or demolishing the mortgaged property and then in rebuilding the same.
Reasonably interpreted the stipulation only means that the mortgagor takes upon himself to pay the cost of repairs or rebuilding in case of breakage or destruction. The breakage or destruction ought to be due to natural deterioration or by some other act of nature beyond the control of the mortgagee, and not undertaken by him at his own initiative and out of his own sweet will. By the use of these or such like words, the mortgagor cannot be taken to have authorized the mortgagee to pull down the entire mortgaged property whenever he (mortgagee) pleases and rebuild it in the manner he desires. That would be authorizing the mortgagee to improve out the mortgagor of his estate and thus clog the right of redemption, which is not permissible under the law or the principles of justice, equity and good conscience. Reading the document as a whole I am not inclined to place any such interpretation on the first condition in the mortgage deed.;