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Rangappa Kondappa Korpe Vs. Vithu Krishnaji Waikar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 572 of 1921
Judge
Reported inAIR1923Bom199; (1923)25BOMLR278
AppellantRangappa Kondappa Korpe
RespondentVithu Krishnaji Waikar
Excerpt:
.....mortgagee cannot recover mortgage amount by suit.; where a mortgagee goes into possession of the property mortgaged to him, then the property is security for his debt. he is entitled to remain in possession, though as a matter of fact if he endeavoured to recover the mortgage money by suit he might find himself barred by the statute of limitations. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed..........defendants then claimed that they were entitled to redeem the mortgaged property on paying off the mortgage money under ex. 23 only, and that as the plaintiff-mortgagee could not sue to recover on the simple mort gages, the defendants were entitled to redeem without paying those amounts. the defendants obtained a decree on those terms in the trial court, and again in the appeal court. but we are of opinion that both those decisions were wrong. once the mortgagee got into possession of the property mortgaged to him, then the property was security for his debt. he was entitled to remain in possession, though as a matter of fact if he endeavoured to recover the mortgage money by suit he might find himself barred by the statute of limitations. if this decision were to stand, it would follow.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is a suit filed by the plaintiff to eject the defendants, and recover possession of the plaint property, the defendants being in possession under a rent-note of June 1, 1904, executed in plaintiff's favour on an annual rent of Rs 18-12-0. The plaint)IF is a mortgagee, the defendant having executed four mortgages with regard to the plaint property. They are set out at page 6 of the print. The first three are simple mortgages and the fourth one was a mortgage with possession ; and this is a suit really by a mortgagee in possession against his tenant. The Courts, however, have dealt with the case as if it was a suit filed under Section 3(y) of the Dekkhan Agriculturists' Relief Act, and have entertained a claim by the defendants to be allowed to redeem. The defendants then claimed that they were entitled to redeem the mortgaged property on paying off the mortgage money under Ex. 23 only, and that as the plaintiff-mortgagee could not sue to recover on the simple mort gages, the defendants were entitled to redeem without paying those amounts. The defendants obtained a decree on those terms in the trial Court, and again in the Appeal Court. But we are of opinion that both those decisions were wrong. Once the mortgagee got into possession of the property mortgaged to him, then the property was security for his debt. He was entitled to remain in possession, though as a matter of fact if he endeavoured to recover the mortgage money by suit he might find himself barred by the statute of limitations. If this decision were to stand, it would follow that the mortgagee in possession though he could not sue for the mortgage-debt would still be liable to be redeemed without receiving any of the mortgage money. We think, therefore, that the decree must be set aside, and the case remanded to the trial Court to take an account of what is due to the plaintiff under the mortgages Exts. 21, 22 and 23. As the mortgage, Ex. 33, refers to other properties, the plaintiff is pleader does not ask an account to be taken of the money due thereunder. The plaintiff is entitled to his costs throughout.


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