Prakash Tatia, J. - (1.) Heard learned counsel for the parties.
(2.) Brief facts leading to filing of this suit for redemption of the mortgaged shop are that originally the property was belonging to one Laluji Soni. He had three sons, Suraj Mal, Bal Mukund and Laxmi Lal. Bal Mukund and Laxmi Lal both died before the year 1956. Suraj Mal had one son and wife, Jagannath and Lehri Bai. Suraj Mal also died long ago and it is alleged that Suraj Mal's wife contacted second marriage (Nata). It is alleged that Sal Mukund, Laxmi Lal and Jagannath constituted the coparcenery after the death of Laluji Soni. Bal Mukunad mortgaged the shop in dispute to Narayan s/o Fateh Lal, Heera Lal and Jiwan Lal Sethi for a consideration of Rs. 3000/- on 30.1.1994. It is alleged that the said mortgage was created with the consent of Laxmi Lal and Jagannath. The possession was delivered to the mortgagees. The mortgagee Narayan expired and the remaining mortgages transferred their mortgage's rights to the defendant for a consideration on Rs.2000/- by registered deed dated 21.2.1961 and handed over possession of the shop to the defendant, therefore, the defendant stood in the shoes of the mortgagees. It is alleged that Bal Mukund and Laxmi Lal both expired before coming into force of Hindu Succession Act 1956 and their wives contracted stood marriage (nata), therefore, Jagannath succeeded to the property as sole owner. It is alleged that Jagannath was of unsound mind and he was living in the guardianship of his wife Smt. Lehri Bai and according to the plaintiff. Smt. Lehri Bai is the de-facto guardian of Jagannath. Because of the need, the shop in dispute was sold by Smt. Lehri Bai as de-facto guardian of Jagannath to the plaintiff by registered sale-deed dated 19.1.1971 for a consideration of Rs. 5000/-. Thereby, the plaintiff became the owner of the shop in dispute and stepped in the shoes of the mortgagor. The plaintiff, after serving notice upon the defendant dated 24.1.1971, filed this suit for redemption of the mortgage shop on 16.2.1971.
(3.) The defendant contested the suit after admitting the ownership of Laluji Soni for the shop dispute. The defendant submitted that the complete pedigree has not been given by the plaintiff. The defendant submitted that Laluji had four sons, Suraj Mal, Bal Mukund, Laxmi Lal and one Gehri Lal. Gheri Lal went in adoption. Bal Mukund had three daughters, Bhanwari, Manohari and Kamla. According to the defendant, the property of Laluji was partitioned between the son of the Laluji in the life time of Laluji himself and all the sons started living in their separate houses with their separate kitchens. Jagannath sold his property for a consideration of Rs. 1800/- to Bal Mukund on 12.2.1944 wherein Jagannath himself mentioned that by this sale-deed he is selling the property which had come in his share. Therefore, it is evident that properties of Laluji were partitioned before 1944. It is also alleged that in the registered document, said Jagannath and Laxmi Lal put their signatures as attesting witnesses which shows that the property between co-sharers of the deceased Laluji was partitioned and this fact was not disputed by any body. The defendant also pleaded that after the death of Raj Mukund, her daughters became the owners of the property and they executed sale-deed for the shop in dispute in favour of the defendant on 11.2.1971. The defendant also submitted that Jagannath was never idiot or of unsound mind nor Smt. Lehri Bai acted as de-facto guardian of Jagannath, therefore Smt. Lehri Bai had no right to transfer the mortgage property in favour of the plaintiff because firstly, Jagannath himself sold the property to Bal Mukund which came in the share of Jagannath upon partition of the property and secondly, even after death of Bal Mukund, the property devolved upon Bal Mukudn's daughters and not upon Jagannath.;