1. The appellant, Parvatibai kom Gopal Dhamdhere, was defendant No. 1 in a suit which was brought by Jaibai kom Patluji in order to avoid the effect of a decree obtained by Parvatibai in a suit instituted by her mother Kashibai, Suit No. 449 of 1916, for redemption of a possessory mortgage of 1872 in respect of the suit property which had originally belonged to Kashibai's father Babaji Ramji. Kashibai died duration the pendency of the suit and her daughter, defendant No. 1, was on application made by her brought on record as Kashibai's legal representative. The original mortgagee was Bahirji Balaji after whose death his son Patluji also died, leaving two widows Jaibai, the plaintiff, and Laxmibai. Jaibai is the daughter of Rahibai, Kashibai's sister, Rahibai being also a daughter of the mortgagor Babaji. In Suit No. 449 of 1916 the defendants were Jaibai, Laxmibai and two other parties named Kadams to whom; Laxmibai was alleged to have sold her half share in the mortgagee's right. In that suit the position of Jaibai was two-fold, first as co-mortgagee with Laxmibai or her vendees, and, secondly, as co-mortgagor with Parvatibai. But she raised no deffence based on her second position and not only did she not contend that with regard to her half share there had been a merger of the mortgagor's and the mortgagee's rights but she omitted even to mention that she had any rights as a granddaughter of the original mortgagor.
2. Suit No. 449 of 1916 was decreed in favour of defendant No. 1, and on September 1, 1919, possession of the mortgaged property was delivered to her from the mortgagees-Defendants Nos. 2 to 5, who are brothers of Jaibai, however, remained in actual physical possession and in 1928 defendant No. 1 filed Suit No. 1155 of 1928 for possession. That suit was decreed in her favour and the decree was confirmed in appeal on August 22, 1931. Before that date, on April 18, 1931, the present suit was filed. The plaintiff claimed an injunction restraining defendant No. 1 from taking possession of the northern half of the property of which she stated that she was in possession as owner, having been assigned to her as her share on partition between her and her co-widow Laxmibai. She prayed in the alternative for partition by metes and bounds of the property in suit and allotment to her, as far, as possible, of the northern moiety of the property. She made her brothers defendants Nos. 2 to 5 parties, alleging that they had been in possession as her own tenants.
3. The main contentions of the principal defendant, defendant No. 1, were (1) that Kashibai on her mother Bhimabai's death had inherited the entire right of redemption, being the sister ' who had been unprovided for,' and that, therefore, Jaibai had no interest in the equity of redemption ; (2) that the suit was barred by res judicata ; (3) that it was also barred by estoppel in view of the conduct of Jaibai in the suit of 1916 and the darkhast proceedings consequent thereon ; and (4) that in case partition was ordered, she should be allotted the northern half of the suit property in which she had sunk a well. The trial Court held that the suit was barred by res judicata and estoppel and dismissed the suit. After filing the suit Jaibai executed a registered sale-deed on September 22, 1931, conveying her right, title and interest in the suit property to defendants Nos. 3 and 5. She then applied to get her name struck off as plaintiff and to get the names of defendants Nos. 3 and 5 substituted instead. The application was opposed by defendant No. 1 and the learned Subordinate Judge ordered the names of the plaintiff and defendants Nos. 3 and 5 ' to continue as before ' at that stage of the suit. The suit was decided without any inquiry: as to the merits of the application.
4. The plaintiff and defendants Nos. 3 and 5| preferred an appeal against the decree, none of the respondents raising any objection to defendants Nos. 3 and 5 joining Jaibai as appellant. The lower appellate Court held that the suit was not barred by res judicata or estoppel, reversed the trial Court's decree and remanded the suit for disposal. This decree was reversed by this; Court, which held that the District Court should have passed an order under Order XLI, Rule 25, and not under Rule 23. Thereafter the trial Court framed and decided the necessary issues, holding inter alia that defendant No. 1 had failed to prove that Kashibai had inherited the property on Bhirna-bai's death as preferential heir to the exclusion of her sister Rahibai.
5. During the pendency of the appeal Rahibai died on July 24, 1940, and no application was made to bring her legal representative on record within ninety days of her death. Appellants Nos. 2 and 3, i.e. defendants Nos. S and 5, however, had applied to be-brought on record as Jaibai's heirs ; but as it was found that somebody else was her heir, the application was rejected. Sometime after the expiry of ninety days from Jaibai's death an application was made by appellants Nos. 2 and 3 to enter their names as her legal representatives. The application was rejected on the ground that the appeal, so far as Jaibai was concerned, had already abated.
6. Defendant No. 1 contended before the lower appellate Court that the whole appeal had abated in the absence of any legal representative of Jaibai. This contention was negatived. It agreed with the trial Court in rejecting defendant No. 1's contention that Kashibai had inherited the property in suit to the exclusion of Rahibai. Accordingly, it declared that appellants Nos. 2 and 3,: i.e. defendants Nos. 3 and 5, were entitled to a half share in the property and directed that on depositing in Court for being paid to defendant No. 1 half the costs of the redemption suit and Rs. 275, being half of the amount of the cost of the permanent improvements effected by Kashibai, appellants Nos. 2 and 3 were to become entitled on equitable partition to recover possession of a half share in the said property as mortgagees, and that further in case the amount of Rs. 275 was not paid, the portion of the suit land in which the well had been sunk and repairs made should be allotted to defendant No. 1 in partitioning the land.
7. The main points taken in this appeal by defendant No. 1 are (1) that the suit was barred by res judicata, (2) that the plaintiff was estopped from bringing the suit, (3) that defendants Nos. 3 and 5 were not entitled to continue the appeal on Jaibai's death in the lower appellate Court, and (4); that Kashibai inherited the property in suit as the preferential heir to the exclusion of Rahibai and that therefore the plaintiff or defendants Nos. 3 and 5 should have no interest in the said property.
8. On the question of res judicata, it has been contended on behalf of the appellant that in Suit No. 449 of 1916 Jaibai, who was defendant No. 1 in that suit, could and ought to have raised the defence that she was entitled to claim a moiety of the equity of redemption and that, therefore, jaibai should have got Parvatibai's right to redeem confined to a half share in the mortgaged property, and, secondly, that Jaibai should have resisted Kashibai's and Parvatibai's attempt to take possession of the whole of the, suit property; and that if that was the position, the suit must be held to be barred by res judicata. The contention that Jaibai should have got Parvatibai's right to redeem confined to a half share in the mortgaged property is based on the argument that Jaibai had a half share in the mortgagee's rights and a half share in the mortgagor's right as well and that the combination of the two resulted in a merger which necessarily broke the integrity of the mortgage, so that under the last paragraph of Section 60 of the Transfer of Property Act Parvatibai, as owner of a half share of the mortgaged property, would be entitled ' to redeem her share only.' The last paragraph of Section 60 of the Transfer of Property Act is in these terms :
Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.
As in this case there were more mortgagees than one and as both of them had not acquired in whole (or in part the share of a mortgagor, it seems to me prima facie that the condition enabling partial redemption by Parvatibai was not satisfied and that, therefore, this argument is not tenable.
10. In Subba Rao v. Sarvarayudu I.L.R. (1921) Mad. 7 it was remarked (p. 19) :
In fact the rule is that a mortgage should be redeemed as a whole ; the right to redeem in part is given to a mortgagor as a privilege in the exceptional case noted above (i.e., as stated in Section 60) to avoid multiplicity of suits and in none else. Now in the present case the plaintiff had sued to redeem the whole mortgage. I think he was bound to do so, for he couid not take advantage of the exception, because the equity of redemption in items 6 and 9 is not shown to have passed to all the, mortgagees as a body but only to some of them.
The same consideration should, in my opinion, prevail in the present case. In Mahtab Rai v. Smt. Lal I.L.R. (1883) All. 276 it was pointed out that when the mortgagee had, or if there were more than one all the mortgagees had, acquired the equity of redemption of a part of the mortgaged property, the mortgagor might redeem a share of the mortgaged property by payment of a proportionate part of the mortgage-debt, and it was remarked, with reference to the facts of that case (p. 277) :
But this is not such a case, for only one of several mortgagees has acquired a share of the mortgaged property.
11. In Jagmohan Singh v. Harbans Singh it was held that it was only when all the mortgagees had joined in purchasing a portion of the property mortgaged to them that the integrity of the mortgage was broken up and the mortgagor or mortgagors became entitled to redeem piecemeal. In Fakir Chand v. Babu Lal I.L.R. (1917) All. 719 it was held that the owner of a portion only of the equity of redemption was competent to maintain a suit for redemption of the entire mortgage even against the will of the mortgagee. It does not, therefore, appear that it was possible for Jaibai in the suit of 1916 to have insisted on only a partial redemption of the mortgage by Parvatibai. In Mamu v. Kattu I.L.R. (1882) Mad. 61 it was held that the owner of a share in the equity of redemption could not sue for redemption of a portion without first obtaining partition of the property mortgaged. But this decision was dissented from in Mara Joshi v. Ramchandra Dinkar Joshi I.L.R. (1890) 15 Bom. 24, where it was held that the owner of a share in the equity of redemption need not obtain partition before suing for redemption, that he was entitled to redeem the whole mortgage and that the fact that the mortgagee had himself purchased a portion of the equity of redemption did not defeat that right.
12. It seems to me, therefore, that in the suit of 1916 Parvatibai was entitled to redeem the mortgage as a whole and her right to do so could not be restricted. As to her claim for possession on redemption, such possession would be by virtue of the right of subrogation conferred by Section 92 of the Transfer of Property Act, she being a co-mortgagor. She would be entitled to the possession which had been held by the mortgagee-defendants in that suit under the possessory mortgage. The right to such possession appears to me to be clearly distinct from an owner's right or a mortgagor's right on a possessory mortgage. If that was so, Parvatibai by claiming possession in the redemption suit of 1916 was not in any manner attacking Jaibai's right as a co-mortgagor or owner whereupon her present suit is based. If Parvatibai was entitled to redeem the mortgage as a whole, she would obtain possession1 on behalf of all the mortgagors subject to her rights under Section 95 of the Transfer of Property Act, i.e. she would be entitled to recover from her co-mortgagors proportionate amounts not only of the mortgage money but also of the expenses properly incurred in such redemption ; and Jaibai would be entitled to bring a suit for partition subject to the above provision after the redemption. In the result, therefore, it seems to me that it cannot be held that the plaintiff's suit was barred by res judicata.
13. Coming to the question of estoppel, it has been contended by the learned advocate for the appellant that Jaibai's omission to assert her right as a co-mortgagor in the suit of 1916 led defendant No. 1 to exercise acts of ownership and incur expenses in digging a well and making improvements on the land and that, therefore, Jaibai is estopped from asserting such a right in the present suit. But as I have already pointed out, the possession which was asked for in that suit and which was given in execution was possession as held by the mortgagees which did not conflict with Jaibai's rights as a co-mortgagor or co-owner, and those rights were not attacked in that suit. It was, therefore, not necessary for Jaibai to assert them and it could not, therefore, be said that Jaibai was guilty of any omission, representation or suggestion which misled Parvatibai into doing anything which she would not otherwise have done. Though Kashibai in her plaint stated that she was the heir of Babaji, the Court framed an issue on this point and found that she was ' at least one of the heirs' of Babaji. Kashibai's contention in this behalf was, therefore, not upheld by the Court and it could not be said that anything done or omitted to be done by Jaibai had the effect of leading Parvatibai to act on the supposition that she was the sole owner. If Par-vatibai made improvements after the decision in the suit of 1916, she cannot be deemed to have made them as a sole owner and no rights of Jaibai would be affected thereby. I am satisfied, therefore, that the suit was not also barred by estoppel.
14. The next question is whether defendants Nos. 3 and 5 could continue the appeal after Jaibai's death. The appellant's case is that in the trial Court defendants Nos. 2 and 5 were throughout treated as tenants of the plaintiff. When the plaintiff by her application, exhibit 15, requested the Court to strike off her name and to substitute the names of defendants Nos. 3 and 5, the application was opposed by defendant No. 1 and the order that the Court passed, viz. that the parties should continue as before, shows that the plaintiff or defendants Nos. 3 and 5 did not establish the transfer by the plaintiff. The possession of defendants Nos. 3 and 5, therefore, up to the end of the trial was that of plaintiff's tenants. On the plaintiff's death, again, defendants Nos. 3 and 5 made an attempt to establish that they were the plaintiff's legal representatives, but they failed in that attempt. It is, therefore, contended that when the appeal was filed there was nothing to show that defendants Nos. 3 and 5 were joining Jaibai as appellants in any new capacity. No application was made to the Court under Order XXII, Rule 10, which requires that a suit (which expression would include an appeal) to be continued by a person upon whom any interest had devolved during the pendency of the suit must be so continued ' by leave of the Court'. Admittedly no leave of the Court was obtained when the appeal was filed. Thus at the stage at which the Court could have given the necessary leave, it was not obtained and, therefore, it is contended that defendants Nos. 3 and 5 were not entitled to 'appeal against the decree of the trial Court. The respondents' reply to this line of argument is that defendants Nos. 3 and 5 did not appeal as the legal representatives of the plaintiff, who was alive at the date of the institution of the appeal, but that they were entitled to appeal under the provisions of Section 146 of the Civil Procedure Code :
Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
The contention is that under this section it is enough for the person who takes the proceeding or makes an application, or against whom a proceeding is taken or an application made, to ' claim ' under the original party. The trial Court, though it did not go into the merits of the application, exhibit 15, stated in its judgment that defendants Nos. 3 and 5 had purchased the property in suit from the plaintiff after the suit. This finding would, in my opinion, be a sufficient basis or foundation for an appeal by defendants Nos. 3 and 5 against the decree of the trial Court. It has now been established, that the trial Court's conclusion on this point, as to the transfer of the plaintiff's interest to defendants Nos. 3 and 5, is correct. It seems to me important in this connection to observe that when the appeal was filed by Jaibai as well as by defendants Nos. 3 and 5, no objection to the form of the appeal was raised by any of the respondents. That being so, I think it must be held that any technical objections to defendants Nos. 3 and 5 appearing on record as appellants have no substance and that, therefore, on the death of Jaibai they, as the remaining appellants, were entitled to continue the appeal.
15. The last question that arises for consideration is whether the findings of both the Courts below that on the death of Bhimabai Kashibai cannot be said to have inherited Babaji's property as the exclusive heir is correct. This question depends on the application of the principle which governs the succession of daughters inter se as heirs to their father's estatel in Hindu law to the facts of this case. The material facts are these. At the time the succession opened, i.e. in 1904, Kashibai was a widow while Rahibai's husband was alive. Kashibai's husband possessed two lands and a house if the village of Pimpalgaon, the lands being assessed at Rs. 12-2-8. The value of the entire estate was Rs. 600. Rahibai's husband also had a house and lands assessed at Rs. 19-13-11. There was a mortgage for Rs. 100 on Kashibai's husband's property, the amount actually due thereon being Rs. 114. The document regarding the mortgage exhibit 135 shows that it was a possessory mortgage. The mortgage debt was discharged finally in 190(6, Kashibai's husband's family had been in a financially embarrassed condition since 1872 and there had been as many as nine or ten mortgages between that date and 1904. The evidence shows that Kashibai used to earn her living as an agricultural labourer and there is no evidence to show that Rahibai's husband was anything but an agriculturist.
16. In Totawa v. Basawa I.L.R. (1898) 23 Bom. 229 it was held that though the Courts ought not to go minutely into the question of comparative poverty of the sisters, yet where the difference in wealth is marked, the whole property passes to the poorest daughter. The principle was first laid down in this province in Bakubai v. Manchhabai (1864) 2 B.H.C.R. 5 viz. that in this Presidency, as between married daughters, succession was regulated by their comparative endowment or non-endowment. In Poll v. Narotum (1869) 6 B.H.C.R. 183 it was ruled that comparative poverty was the sole criterion for settling the claims of the daughters; among themselves. In Srimati Uma Devi v. Gokoolanund their Lordships of the Privy Council held that the claim of indigent or unprovided-for sister to maintain the suit was superior to that of her richer sister. It seems to me that in applying these principles the Courts below have fallen into the error of thinking that there was no marked difference in wealth between the two sisters. On the one hand, the assessment of lands owned' by Rahibai's husband was more than one and a half times that of the lands held by Kashibai; Kashibai's lands, moreover, appear to have been in the possession of the creditors in 1904, and Kashibai, who had to earn her living as an agricultural labourer, had nobody else in her family to support her or to supplement her income. On the other hand, Rahibai's husband does not appear to have been a labourer, nor was his land encumbered like Kashibai's, and he used to obtain, the agricultural produce of lands which were obviously larger in extent than Kashibai's lands. It seems to me that where the value of the whole of Kashibai's property, i.e. including her residence, was Rs. 600, a debt of Rs. 114 which had to be discharged, not out of the income of the lands but by the proceeds of agricultural labour, must be regarded as sufficiently onerous to constitute an appreciable difference in the scales of living of the two sisters, Kashibai's husband's family had been indebted for a period of over thirty years. The trial Court has stated in its judgment that the mortgage on Kashibai's lands was possessory 'only in form,' as Kashibai's husband appears to have 'paid interest to the mortgagees. I have been unable to find any evidence of his having paid interest to the mortgagees in the record of this case. The mortgage bond, exhibit 135, clearly mentions that the mortgagee was to have possession and appropriate the income from the land towards the interest. It seems to me that in view of the fact that neither of the sisters can be described as in affluent circumstances, the circumstances that I have mentioned above suffice to show that Kashibai's income was markedly different from that of Rahibai and her husband, the probability being that while Kashibai subsisted by agricultural labour alone, Rahibai and her family lived mainly on the proceeds of their lands. It would seem that Jaibai was conscious that the property in suit had already passed to Kashibai when she filed her written statement in the suit of 1916 wherein she did not assert any right as co-owner or co-mortgagor in respect of the said property. The assessment of the lands in suit is Rs. 4-8-0. It seems to me necessary to take a view on the question of the applicability of the law to the facts of this case different from the view taken by both the Courts below ; and I hold that the difference in the wealth of Kashibai and Rahibai was sufficiently marked to entitle Kashibai to be regarded as the sister who was ' unprovided for ', so that the whole property would pass to her on the death of Bhimabai, the mother.
17. The appeal, therefore, succeeds on this point, and will be allowed, with the result that the suit will be dismissed with costs throughout.