KUKAJI Vs. BASANTILAL

JUDGEMENT

(1.) THIS revision petition arises out of the plaintiff non -applicant's suit for redemption of a mortgaged house. The facts are that on 3 -4 -1931 one Bherulal mortgaged with possession a house belonging to him with Kukaji for Rs. 200/ -. One of the terms of the mortgage was that if the mortgagor failed to redeem the property within eight years of the date of the mortgage, it shall be, deemed to have been sold to the mortgagee. Bherulal did not, however, redeem the mortgage within the stipulated period. On 8 -4 -1939, he, however, executed a sale deed in favour of Kukaji transferring the house to him, the consideration being the mortgage debt and the amount spent by Bherulal on the repairs and improvements to the property. This sale deed was not registered. On 12 -4 -1939 Bherulal sold the equity of redemption on this mortgage to Basantilal by a registered deed. Thereafter Basantilal instituted on 9 -10 -1939 the suit giving rise to this petition against the mortgagee for the, redemption of the property.

(2.) BEFORE me Mr. Shastrabudhe learned counsel appearing for the petitioner did not dispute that the insertion of the clause in the mortgage deed that in default of payment within eight years the mortgage would operate as a sale could not be regarded as "an act of parties" extinguishing the right of redemption. He, however, relied on the sale deed dated 8 -4 -1939 executed by Bherulal in favour of Kukaji as extinguishing the right of redemption and said that though this document was unregistered yet inasmuch as Kukaji continued in possession of the property after 8 -4 -1939 as a vendee and as the plaintiff Basantilal had notice of this contract of sale, therefore, Kukaji's rights under the deed dated 8 -4 -1939 could not be affected in any way by the registered deed dated 12 -4 -1939 in favour of Basantilal and that, therefore, Basantilal was not entitled to the possession of the property.

(3.) IT was then argued that because of the omission of the trial Court to frame proper issues in the suit, the applicant could not lead evidence to prove any act done by him in furtherance of the contract, the collusive nature of the transaction in favour of Basantilal and the fact that he had notice of the contract of sale dated 8 -4 -1939 in favour of Kukaji. This contention may be disposed of by saying that the defence of the doctrine of part performance involves questions of fact and the defendant claiming the benefit of the doctrine must raise the plea in ; his written statement. No such plea was taken by the applicant and he did not even in the appellate court make any complaint that the issues properly arising on his written statement had not been framed and investigated. In the memorandum of appeal filed by him before the District Judge, Shajapur, the applicant only said in ground No. 5 that the learned trial Judge was not justified in saying that the applicant produced no evidence to show that Basantilal had knowledge of the transaction dated 8 -4 -1939, when the trial Judge framed no issue on the point. In that memo the applicant nowhere prayed that as proper issues had not been framed in the suit it should be remanded.