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Krishna Vitnak Mahar Vs. Shankar Krishna Gandhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 386 of 1936
Judge
Reported inAIR1939Bom419; (1939)41BOMLR863
AppellantKrishna Vitnak Mahar
RespondentShankar Krishna Gandhi
DispositionAppeal dismissed
Excerpt:
.....such suit maintainable.;a suit for an account of a mortgage, under section 15d of the dekkhan agriculturists' relief act, 1879, is not maintainable when it requires the setting aside of the sale of the equity of redemption.;mt. bachi v. bickchand (1910) 13 bom. l.r. 56 p.c., chandabhai v. ganpati (1916) 18 bom. l.r. 763, krishnaji v. sadanand (1924) 26 bom. l.r. 341, vishvanathbhat v. mallappa (1925) 27 bom. l.r. 1103 and chandikaprasad v. shivappa (1928) 30 bom. l.r. 1099, followed.;ganesh v. rajaram (1933) 35 bom. l.r. 1123 and savant v. bharmappa (1933) 35 bom. l.r. 604, distinguished. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate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..........the suit was maintainable, and on taking an account, it declared that nothing was due under the suit mortgage. in appeal the learned district judge, following the principle laid down by the privy council in mt, bachi v. bickchand (1910) 13 bom. l.r. 56 held that such a suit which required the setting aside of the sale of the equity of redemption was not maintainable under section 15d of the dekkhan agriculturists' relief act.2. in mt. bachi v. bickchand their lordships of the privy council observed that the dekkhan agriculturists' relief act gave extraordinary : reliefs, in certain cases specified under the act, and that although a suit may in form be a suit for redemption, if in reality it was a suit to recover property of which the rightful owner had been deprived by fraud, a suit.....
Judgment:

Lokur, J.

1.The only question arising in this appeal is whether the plaintiffs' suit for an account of a mortgage under Section 15D of the Dekkhan Agriculturists Relief Act is maintainable. The plaintiffs' grandfather Yesnak and his three brothers mortgaged their joint family property for a period of twenty years on May 11, 1865, each of the four brothers having a one-fourth share in the property. The plaintiffs' grandfather Yesnak had three sons, Devnak, Vitnak and Ratannak. The plaintiffs and defendant No. 5 Jiva are the sons of Vitnak, and Gourya is the son of Ratannak. On July 2, 1901, Devnak, on his own behalf and as guardian of Gourya, passed a sale-deed in favour of the mortgagee, purporting to convey the one-fourth share of Yesnak in the equity of redemption. The plaintiffs and defendant No. 5 were then minors, but their names were not mentioned in the sale-deed (exhibit 47). The plaintiffs, therefore, brought this suit for an account of the mortgage so far as their one-twelfth share in the property mortgaged was concerned. The trial Court held that the suit was maintainable, and on taking an account, it declared that nothing was due under the suit mortgage. In appeal the learned District Judge, following the principle laid down by the Privy Council in Mt, Bachi v. Bickchand (1910) 13 Bom. L.R. 56 held that such a suit which required the setting aside of the sale of the equity of redemption was not maintainable under Section 15D of the Dekkhan Agriculturists' Relief Act.

2. In Mt. Bachi v. Bickchand their Lordships of the Privy Council observed that the Dekkhan Agriculturists' Relief Act gave extraordinary : reliefs, in certain cases specified under the Act, and that although a suit may in form be a suit for redemption, if in reality it was a suit to recover property of which the rightful owner had been deprived by fraud, a suit under the Dekkhan Agriculturists' Relief Act was not maintainable. In that case a mortgage was executed by three persons named Saindino, Mitho and Sachedino, in favour of two of the respondents, viz. Bikhchand and Dipchand, mortgaging 500 acres of land for a sum of Rs. 1,700. Subsequently one of the mortgagors Mitho and his brother Mirzan sold 122 acres out of the 500 acres to the mortgagees in satisfaction of the entire mortgage and thereby redeemed the remaining 378 acres of land. Bickchand and Dipchand had thus become the full owners of 122 acres of land, and they sold them to one Kherajmal and gave them into his possession. Sachedino and Saindino, who had not joined Mitho in the sale-deed, having died, their heirs filed a suit against the original mortgagees and their transferor Kherajmal to redeem the mortgage under the provisions of the Dekkhan Agriculturists' Relief Act, alleging that they were not bound by the sale-deed of Mitho and his brother Mirzan. The Privy Council then held that the special relief under the Dekkhan Agriculturists' Relief Act could not be granted in a suit which, though not in form, was in reality a suit to set aside the alienation by two of the mortgagors. This ruling was followed in several cases : Chandabhai v. Ganpati : AIR1916Bom199 Krishnaji v. Sadanand : AIR1924Bom417 Vishvanathbhat v. Mallappa : AIR1925Bom514 and Chandikaprasad v. Shivappa : AIR1928Bom425 . In the last case the suit was filed for the redemption of a mortgage under the special provisions of the Dekkhan Agriculturists' Relief Act, and although it was held on the principle laid down by the Privy Council in Mt. Bachi v. Bickchand (1910) 13 Bom. L.R. 56 that it was not competent to the plaintiffs to resort to the special provisions of the Dekkhan Agriculturists' Relief Act, still the suit could be treated as one brought in the ordinary way for setting aside the sale by one of the mortgagors and for redeeming the mortgage if the sale be set aside. Such a relief cannot be granted in the present suit since no redemption is claimed, but merely an account of the mortgage is asked for under the provisions of Section 15D of the Dekkhan Agriculturists' Relief Act. Such accounts cannot be claimed in an ordinary suit, but they are a special privilege given to an agriculturist by the provisions of Section 15D of the Dekkhan Agriculturists' Relief Act which enables an agriculturist to file a suit valuing his claim even at Rs. 5 only. All the cases above referred to have been summarised by Shingne J. in Ganesh v. Rajaram : AIR1934Bom32 . In that case the mortgage was admitted, but it was alleged that the mortgage had been extinguished by adverse possession, and Shingne J. held that it was permissible to bring a suit for redemption of the mortgage under the provisions of the Dekkhan Agriculturists' Relief Act, although in deciding it the Court had to, determine whether the plaintiff's share in the mortgaged property was lost by adverse possession or to determine the extent of his share. In coming to that conclusion he distinguished the ratio decidendi adopted in the previous cases. He observed (p. 1130):

In all these cases, excepting the last one, there were subsequent transfers of the mortgaged property-or rather of the equity of redemption. They were impediments in the way of redemption and unless they were got rid off, the way to redemption was not clear but was blocked.

In the present case also the sale-deed executed by Devnak is an impediment in the way of redemption, and unless that sale is got rid of, the way to redemption is not clear, but is blocked. This view was taken both in Chandabhai v. Ganpati and Krishnaji v. Sadanand. In Savant v. Bharmappa : AIR1933Bom306 the learned Chief Justice held that an agriculturist mortgagor could sue for an account under Section 15D of the Dekkhan Agriculturists' Relief Act, although the suit might involve a preliminary inquiry whether the transaction in suit was a mortgage or a sale. In that case after the property was mortgaged the equity of redemption had not been extinguished, but the mortgage was evidenced by a sale-deed, and the question was whether the transaction represented by that sale-deed was really a mortgage or an absolute sale. If the transaction was held to be a mortgage, then there was no impediment in the way of its redemption. Thus the cases which the learned Chief Justice and Shingne J. had to consider in the two rulings reported in 35 Bom. L.R. stand on a different footing. The present case is more analogous to the other cases referred to by me where a suit for redemption under Section 15D of the Dekkhan Agriculturists' Relief Act was held to be not maintainable. I, therefore, agree with the view taken by the learned District Judge and dismiss the appeal with costs.


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