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Mahabaleshwar Venkatraman Hedge Makki Vs. Krishna Ganapati Hegde - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 24 of 1934
Judge
Reported inAIR1937Bom453; (1937)39BOMLR928
AppellantMahabaleshwar Venkatraman Hedge Makki
RespondentKrishna Ganapati Hegde
Excerpt:
.....by her-good till her life-time-reversioners-agriculturists-mortgage-redemption of-liability to account for profits of mortgaged property-dekkhan agriculturists' relief act (xvii of 1879), section 13.;a joint hindu family consisting of several members executed in 1901 a mortgage of one of the joint family properties. the mortgage was a usufructuary mortgage and the mortgagee was entitled to take the profits as against interest. on a partition in 1904, the equity of redemption came to the share of one of the members of the family. that member died in 1905 leaving a widow, who became entitled to a widow's estate in her husband's property. in 1907, she sold away her rights in her husband's property, which included the equity of redemption in the mortgaged property. in 1916, the..........the equity and would be accountable to himself. b.efore 1910 there might be a liability to account to bommi, or the purchaser from her, but not to the plaintiffs, who do not claim through her. the learned district judge seems to have thought that the dekkhan agriculturists' relief act makes a difference. in my opinion it makes no difference at all. apart from that act the mortgagee would not be liable to account at all for the profits. under that act he is liable to account but only to the persons entitled to the profits, and the present plaintiffs are not entitled to such profits. in my opinion the judgment of the district judge was wrong and must be set aside and the decree of the trial court restored. costs of the appeal and of the lower appellate court to be paid by the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from a decision of the District Judge of Karwar. I am told there is no authority on the point raised, but it seems to me a point which presents no difficulty at all, and depends upon appreciation of the rights of a widow under Hindu law. The suit is a suit to redeem a mortgage made in 1901. The equity of redemption in that mortgage became vested in Subraya, who died in 1905, leaving a widow Bommi, who became entitled to a widow's estate in her husband's property. That gave her the right during her life-time to receive the income of the property, or to deal with it as she chose, whether by sale or gift. In 1907, Bommi sold her rights in her husband's property, which included the equity of redemption in the mortgaged property, to one Subba, and in 1910 Subba sold the equity to the son of the mortgagee. I understand that the mortgagee was then dead, and that in fact the mortgagee's son became entitled to the whole of the mortgaged property, i.e., the mortgage and the equity. In 1916, the plaintiffs, who were reversioners of Subraya's property subject to the interest of his widow, brought a suit for a declaration that the alienation by Bommi was not binding on them, and that declaration was made. In 1925, the mortgagee assigned his interest to defendant No. 1, and in 1929 Bommi died. Soon after that the plaintiffs brought a suit for redemption of the mortgage, and as it has been declared that Bommi's alienation of the equity of redemption does not bind the reversioners, the plaintiffs are entitled to a decree for redemption. The only question is whether they are entitled to an account of the profits of the land which accrued during Bommi's lifetime. The mortgage, I understand, was a usufructuary mortgage, and the mortgagee was entitled to take the profits as against interest. But the plaintiffs being agriculturists, under Section 13 of the Dekkhan Agriculturists' Relief Act the accounts can be opened from the commencement, and the mortgagee will have to account for profits over and above interest at the rate allowed by the Court. The learned trial Judge held that the mortgagee was not bound to account for any profits between the date of the sale by Bommi in 1907 and her death in 1929. I think myself that the period should have been from the death of Bommi's husband in 1905, and not from the sale in 1907, but there is no cross-objection as to that. In my opinion, apart from that point the decision of the trial Court is clearly right. But in appeal the learned District Judge reversed that decision, and directed the mortgagee to account for the mesne profits from the commencement. I confess that I am quite unable to follow the reasoning of the learned District Judge, which seems to me to be based on a misunderstanding of the rights of a Hindu widow. A Hindu widow during her lifetime is entitled to the profits of her husband's immoveable property, and any alienation by her is good until challenged by the reversioners, and in any case is good for the period of her lifetime. If Bommi had not alienated the equity of redemption, I apprehend that an account of the profits which accrued during her lifetime could not have been claimed by the plaintiffs; such an account could only have been claimed by her, or after her death by her representatives. The plaintiffs could only have claimed such an account by making a title from Bommi, for example by proving that she had so dealt with the profits as to show an intention to add them as an accretion to the corpus. In the events which happened Bommi sold the equity in 1907, and from 1910 the mortgagee acquired the equity and would be accountable to himselF. B.efore 1910 there might be a liability to account to Bommi, or the purchaser from her, but not to the plaintiffs, who do not claim through her. The learned District Judge seems to have thought that the Dekkhan Agriculturists' Relief Act makes a difference. In my opinion it makes no difference at all. Apart from that Act the mortgagee would not be liable to account at all for the profits. Under that Act he is liable to account but only to the persons entitled to the profits, and the present plaintiffs are not entitled to such profits. In my opinion the judgment of the District Judge was wrong and must be set aside and the decree of the trial Court restored. Costs of the appeal and of the lower appellate Court to be paid by the plaintiffs.


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