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Ragho Salvi Vs. Balkrishna Sakharam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom128
AppellantRagho Salvi
RespondentBalkrishna Sakharam
Excerpt:
mortgage of property owned by co-sharers - subsequent severance of interest--suit by one co-sharerto redeem more than his share--parties--time of taking objection. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from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..........the present plaintiff, owner apparently of a two-pie sub-share in property consisting of a two-anna share in a khoti estate mortgaged in a.d. 1827, sued to redeem a one anna eight pies part of that two-anna share. he averred that four-pies had been redeemed, in parts of two pies each, by two other hsarers. such redemption in takshims or separate fractions might imply that there had been a division of the interests in the equity of redemption in a partition amongst the mortgagor's family, and that the mortgagee had assented, to this fragmentation of what in itself was an indivisible obligation entitling him to claim complete payment as the condition of releasing any part of the mortgaged property. but such a breaking-up of the interests so recognized would not have left in the.....
Judgment:

West, J.

1. The present plaintiff, owner apparently of a two-pie sub-share in property consisting of a two-anna share in a khoti estate mortgaged in A.D. 1827, sued to redeem a one anna eight pies part of that two-anna share. He averred that four-pies had been redeemed, in parts of two pies each, by two other hsarers. Such redemption in takshims or separate fractions might imply that there had been a division of the interests in the equity of redemption in a partition amongst the mortgagor's family, and that the mortgagee had assented, to this fragmentation of what in itself was an indivisible obligation entitling him to claim complete payment as the condition of releasing any part of the mortgaged property. But such a breaking-up of the interests so recognized would not have left in the plaintiff Ragho a right to redeem more than his own two-pie share which what the District Court has awarded to him on payment of a sum of Rs. 35. Whether, however, the share of the plaintiff Ragho in this particular part of the one common estate is really two pies, or whether the equity of redemption was, as is now contended, never divided, his suit could not be maintained, could not be properly tried, in the form in which he brought it. He sought to redeem a one anna eight pies share, and so suing, he was bound to bring all the other persons interested in the equity of redemption before the Court. As owner of a two-pie share, which by consent of all interested had become an estate wholly separated from the other parts of the original aggregate, he would hare bean bound to set forth the transactions on which this right rested, but his claim was really to redeem all that remained of the estate in the mortgagee's possession. In such a suit he was bound to make all his co-owners, of the equity of redemption co-plaintiffs or defendants-Norendra Narain Sing v. Dwdrka Lal Mundar I.L.R. 3 Cal 397 : 3 Ben. 355 Without their presence the suit could not be properly disposed of, and the excuse, that the defendant mortgagee did not take objection at the right time, has under such circumstances, no validity.

2. We must reverse the decrees of the Courts below, and remand the cause for re-trial after the plaintiff has added the names as parties of the persons concerned according to the nature of the share and the right on which he intends to rely. Costs to follow the final decision.


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