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Akoba Dada Vs. Sakharam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom429
AppellantAkoba Dada
RespondentSakharam and ors.
Excerpt:
minor - suit againt widowed mother alone how far binding on the minor--parties--representation--sale of equity of redemption--mortgage redemption. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of..........1871) was instituted, in which the equity of redemption was sold, and that it was brought against dadas widow alone as representing dada, apparently in ignorance of the existence of dada's son. it was contended, however, that the plaintiff, although not a party to that suit, was substantially represented in it, and that the entire interest of dada passed to the auction purchaser. in support of that contention 'the cases of isha-chunder mitter v. buksh ali soudagur marsh rep. 614; general manager of raj darbhanga v. maharajah coomar ramapat singh 14 m i.a. 605; and sotish chander lahiry v. nil comul lahiry i.l.r. 11 cal. 45 ; were relied on. in the first of these oases it is to be observed that the plaint itself mentioned the existence of the minor son as being under the guardianship of.....
Judgment:

Charlei Sargent, C.J.

1. The plaintiff, who is a minor, by his mother as next friend claims to recover possession of land which, he says had been mortgaged by his father, Dada, to Harichand, the father of the defendants, and which mortgage, he alleges, has since been paid off. The defendant Sakharam claims to have bought the equity of redemption at an auction sale in execution of a decree obtained by Harichand against Dada. The District Judge held that the entire interest of Dada in the equity of redemption passed under the sale, and dismissed the plaintiff's claim.

2. It appears that Dada was not alive when the suit (170 of 1871) was instituted, in which the equity of redemption was sold, and that it was brought against Dadas widow alone as representing Dada, apparently in ignorance of the existence of Dada's son. It was contended, however, that the plaintiff, although not a party to that suit, was substantially represented in it, and that the entire interest of Dada passed to the auction purchaser. In support of that contention 'the cases of Isha-Chunder Mitter v. Buksh Ali Soudagur Marsh Rep. 614; General Manager of Raj Darbhanga v. Maharajah Coomar Ramapat Singh 14 M I.A. 605; and Sotish Chander Lahiry v. Nil Comul Lahiry I.L.R. 11 Cal. 45 ; were relied on. In the first of these oases it is to be observed that the plaint itself mentioned the existence of the minor son as being under the guardianship of the widow, and the widow was sued as the person in whose possession the property was. The widow was, therefore, sued in her representative capacity, In the case in Moore's Indian Appeals, the minor as well as the widow had been made parties to the suit of 13th April, 1865, in which the decree was passed. The widow was the registered proprietor of the estates of her deceased husband, and an order was made by that decree that the above estates should be put up for sale. In execution of that decree the estates were advertised for sale by the Collector; but the certificate of sale mentioned only 'the right, title, and interest of the widow 'as having been sold. Under these circumstances the Privy Council, remarking that the case did not substantially differ from the case in Marshall's Reports, held that, if the whole proceedings were fairly looked at, 'it showed that the estate of the deceased debtor was sold' and that the 'proceedings were substantially a bar to any claim by the son.'

3. These cases doubtless establish that when the minor son is substantially before the Court, and the proceedings show a clear intention on the part of the Court making the decree to bind the entire estate which is subject to the debt, no mere technical or formal objection will be allowed to prevail against giving full effect to the decree. But they do not go the length of saying that a widow represents the estate so as to bind the son, when the existence of the minor son is, from whatever cause, altogether ignored, and there is nothing on the face of the proceedings to show that she is sued as representing the minor son. In Jatha Naik v. Venktapa I.L.R. 5 Bom. 14 this, distinction was taken. There a decree had been obtained ex park against the widow of the deceased debtor, which was set aside after her death on the application of the sister of the deceased debtor who was placed on the record: and a decree was ultimately passed against the latter in favour of the judgment-creditor, and an order made that in default of payment by the defendant of Rs 300 and costs, the plaintiff should recover that amount from the mortgaged premises, and the Court (consisting of Sir Michael West-ropp and Mr. Justice F. D. Melvill), held that the inheritance was not substantially represented so as to bind the son, who was a minor at the time, inasmuch as the existence of the minor son was ignored throughout the proceedings in that suit.

4. In the present case the plaintiff has been, as a fact, whatever the reason for it may have been, ignored throughout the proceedings in Suit 170 of 1871, The inheritance cannot, therefore in our opinion, be said to have been substantially represented in that suit, and the plaintiff's right to the equity of redemption consequently remained unaffected by the auction sale to Sakhalin; and he is now entitled to redeem the mortgage, or to recover possession of it, if, as he alleges, the mortgage has been already satisfied.

5. We must, therefore, reverse the decree, and send the case back for trial subject to the above remarks. Plaintiff's costs throughout, up to the present time, to be borne by Sakharam.


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