GYAN CHAND SUNDA Vs. RAM PRASAD AGARWALLA

JUDGEMENT

(1.) This is a second appeal by defendants 1 and 2, who are assignees of the mortgage from the original mortgagee (defendant No. 3). The plaintiff-respondent purchased the equity of redemption sometime in 1940 and instituted this suit for the redemption of the mortgage. One defence taken by the defendant-appellants, with which we are now concerned in this second appeal, was that they were entitled to remove the materials of the structure constructed by them on the mortgaged property. It is common ground that, at the time of the mortgage, certain houses stood on the mortgaged property. It is also admitted that they were in a dilapidated condition. It is also not disputed that the appellants had erected new constructions in their stead at a cost of Rs. 3,000. The appellants claim, that on redemption of the mortgage, they should be allowed to remove the materials of the houses they had constructed on the mortgaged property. This claim has been disallowed by both the Courts below.

(2.) The sole point that falls for determination in this appeal is whether the mortgagee or his assignees are entitled to the improvement made by them OB the mortgaged property, or, for the matter of that, they are entitled to remove the materials of the structures constructed by them on the same.

(3.) Learned counsel for the appellants strenuously urged that, although the appellants may not be entitled to retain possession of the houses constructed by them on the mortgaged property, they should not, at least, be debarred from removing the materials of the structures. This contention of learned counsel runs counter to the provisions of section 63A of the Transfer of Property Act, which provides as follows :