- (1.) Leave granted.
(2.) This appeal is directed against the judgment and decree dated 5.5.2006 passed by the High Court of Madhya Pradesh, Indore Bench at Indore in Second Appeal No. 474 of 2001 whereby and whereunder the judgment and decree dated 16.8.2001 passed by the District Judge, Jhabua in Civil Regular Appeal No. 4A/1999 arising out of the judgment and decree dated 23.12.1998 passed by Civil Judge, Class-1 Jhabua in Civil Suit No. 1- A/97, was reversed. Respondent admittedly is the owner of the premises in suit. Appellant was a tenant under him. Respondent, however, executed a deed of usfructuary mortgage in favour of the appellant on or about 1.10.1986, the relevant portions whereof read as under:- "Therefore, I hereby mortgage with possession (Kabza Girvi) the entire portion of the ground floor of my aforesaid house for a sum of Rs. 25000/- with you mortgagee. I the mortgagor have received the mortgage money Rs. 25000/- from you the mortgagee by cheque as mentioned above and that now no mortgage money is due or payable and possession of the ground floor of the suit house has been delivered to you. As the ground floor of the aforesaid house is in possession of you the mortgagee no interest would be payable on the aforesaid amount. You may keep on using the ground floor in lieu of interest and I will have no objection thereto. I shall keep on paying the house tax and other taxes payable in respect of the house. The period for redemption of the ground floor of the said house has been settled between the parties for 10 years. Before the expiry of ten years I the mortgagor shall not be entitled to get the ground floor of the said house redeemed from the mortgage held by you and the mortgagee. After ten years on payment of the entire mortgage money you the mortgagee shall vacate the house and deliver it. In the event of failure to pay the entire mortgage money within ten years you the mortgagee shall have the right to get the mortgaged house auctioned through court and to recover your entire mortgage money due and I shall have no objection thereto. In case of any accident to the house you the mortgagee shall be entitled to recover the entire mortgage money from the open land and if the entire mortgage money is not realized from open land the balance amount may be realized personally from me or from my other property and I shall have no objection thereto. If any person makes a claim in respect of this house I the mortgagor shall be responsible for it. If for any reason you the mortgagee shall be responsible for it. If for any reason you the mortgagee is deprived of the possession of the said house or any portion thereof you can recover the money paid by you with expenses personally from me or from my other property and I shall have no objection thereof. I the mortgagor need money to purchase this mortgaged house and therefore, I have obtained money from you by cheque."
(3.) The said document was an unilateral one. It was, however, preceded by an agreement of mortgage which is in the following terms:- "2. I Smt. Sagarbai w/o Narayan Singh Solanki, I am purchasing this house. For this purpose I am taking Rs. 25, 000/- by cheque from Shri Tarachand Gadia towards mortgage of shop. The registered deed being in my name I shall mortgage the three rooms of the lower portion in which you are running the shop at present, with you. I shall not pay any kind of interest on Rs. 25, 000/- and shall not take rent of the shop.";