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Ragho Vinayak Vs. Sheikh Daud and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom51
AppellantRagho Vinayak
RespondentSheikh Daud and anr.
Excerpt:
.....absence, therefore, of all evidence to that effect it could not well be presumed that the plaintiff's father effected the mortgage of 1854-55 otherwise than in his individual capacity. if the defendant had made out that the plaintiff's father and uncles were undivided at that time, it might have been presumed that the mortgage was for and on behalf of them as well as himself, but this he has failed in doing......the mortgage was for and on behalf of them as well as himself, but this he has failed in doing. we do not think, therefore, we should be justified in holding, from the mere fact of the relationship, that the plaintiff's uncle and cousins have any interest in the equity of redemption.6. we accordingly reverse the assistant judge's decree, and restore that of the subordinate judge, the two judges not differing as to the merits, with this modification that the three months allowed for redemption should count from the date of this decree. the costs of the suit and both appeals to be paid by defendant no. 2, the other defendants not having contested the plaintiff's claim.
Judgment:

Nanabhai Haridas, J.

1. This is a suit to redeem. The mortgage sought to be redeemed was executed in 1854-55 by tae plaintiff's father to the grandfather of defendant No. 1.

2. The Subordinate Judge made a decree for redemption. In e appeal that decree was reversed and the claim rejected by the Assistant Judge, on the ground of non-joinder of certain relatives of the plaintiff, who, he thought, ought to have been made parties to the suit.

3. The question we have to determine in this second appeal, therefore, is whether it was neoessary to make those relations parties.

4. The rule on the subject is that all persons interested in the equity of redemption should be made parties, especially if the defendant insists upon it as here. See Henley v. Stone 3 Bea. 355 No render Narain Singh v. Dwarki Lal I.L.R. 3 Cal. 397 Ragho Salvi v. Balkrishna-Sakharan I.L.R. 9 Bom. 128 ; Fisher, Section 1360; Story's Eq. Pleadings Section 185; and Daniell's Ch. Practice, 207 (4th ed.)

5. We have thus to see whether the said relations of the plaintiff are so interested or not. Those relations according to the Subordinate Judge's finding, are an uncle and some cousins, sons of another uncle. The property in dispute was originally ancestral property, and was mortgaged by plaintiff's grandfather to one Vithshet Narayanshet, from whom it was redeemed by plaintiff's father alone, who, as stated above, in 1854-55 re-mortgaged it to the father of defendant No. 1. It is not alleged that at the time of such re-mortgage the plaintiff's father was united in interest with his brothers. The plaintiff indeed alleges that a partition had taken place between them and that the land in dispute had fallen to his father's share at such partition, and there are witnesses examined in this case who deposed to a partition having taken place, but whose statement as to the land in dispute having come to the plaintiff's father's share is not believed by the Subordinate Judge. He observes, however, that both in redeeming and re-mortgaging the plaintiff's father acted ostensibly as if he were the sole owner. It is not alleged that the plaintiff and his uncle and cousins are still joint. The mortgage does not purport to have been made by plaintiff's father as manager of the family; nor does it appear that the plaintiff's uncle and cousins claim any interest in the equity of redemption. In the absence, therefore, of all evidence to that effect it could not well be presumed that the plaintiff's father effected the mortgage of 1854-55 otherwise than in his individual capacity. If the defendant had made out that the plaintiff's father and uncles were undivided at that time, it might have been presumed that the mortgage was for and on behalf of them as well as himself, but this he has failed in doing. We do not think, therefore, we should be justified in holding, from the mere fact of the relationship, that the plaintiff's uncle and cousins have any interest in the equity of redemption.

6. We accordingly reverse the Assistant Judge's decree, and restore that of the Subordinate Judge, the two Judges not differing as to the merits, with this modification that the three months allowed for redemption should count from the date of this decree. The costs of the suit and both appeals to be paid by defendant No. 2, the other defendants not having contested the plaintiff's claim.


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