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Amrita BIn Bapuji and anr. Vs. Naru BIn Gopalji Shamji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom489
AppellantAmrita BIn Bapuji and anr.
RespondentNaru BIn Gopalji Shamji and anr.
Excerpt:
valuation of a suit--redemption suit--dehkhan agriculturists' relief act (xvii of 1879), chap. ii, section 3--appeal--jurisdiction. - - 50, which, they said, had been satisfied from the profits of the property in the defendants' possession. it continued, after the denial, in its original shape as far as the plaintiffs were concerned, nor is the complexion of it entirely changed because the defendants put forward certain grounds of defence which, if well founded,'must defeat the plaintiffs' right to redeem--gobind singh v......redemption suit, however, the valuation of the subject-matter does not depend on the value of the mortgaged property. in the present case, where the mortgage itself is denied, and the mortgagee does not say what he claims in respect of the mortgage-debt, the amount found to be remaining due on the mortgage, if any amount was due at the time when the suit was filed, would represent the true valuation of the subject-matter of the suit--rupchand khemchand v. baivant narayin i.l.r. 1 bom. 591. as the subordinate judge found that no sun remained due, and as the original advance is only alleged to have been rs. 50, the case app ears to be one falling under section 3 of the act. there was no appeal, therefore, from the decision of the court of first instance; and we, therefore, reverse the.....
Judgment:

Birdwood, J.

1. It has been objected, in second appeal, that no appeal lay to the District Court from the decision of the Subordinate Judge in this case. This objection was not taken in the lower Appellate Court; but it can, nevertheless, be taken here--Shri Sidheshimr Pandit v. Shri Harihar Pandit I.L.R. 2 Bom. 155 . We think that the objection is valid. The plaintiffs are agriculturists, and sued to redeem a mortgage for an advance of Rs. 50, which, they said, had been satisfied from the profits of the property in the defendants' possession. The defendants denied the mortgage, and claimed the property as their own. But such denial would not alter the character or nature of the subject-matter of the suit. It continued, after the denial, in its original shape as far as the plaintiffs were concerned, 'nor is the complexion of it entirely changed because the defendants put forward certain grounds of defence which, if well founded,' must defeat the plaintiffs' right to redeem--Gobind Singh v. Kallu I.L.R. All. 778 . The Subordinate Judge found the alleged mortgage proved, and also that the debt had been more than paid off out of the profits of the property. He held, however, that the case has not one to which Chapter II of the Dekkhan Agriculturists' Relief Act was applicable, as the value of the property exceeded Rs. 100; and this opinion seems to have been practically adopted by the District Judge when he admitted the appeal. In a redemption suit, however, the valuation of the subject-matter does not depend on the value of the mortgaged property. In the present case, where the mortgage itself is denied, and the mortgagee does not say what he claims in respect of the mortgage-debt, the amount found to be remaining due on the mortgage, if any amount was due at the time when the suit was filed, would represent the true valuation of the subject-matter of the suit--Rupchand Khemchand v. Baivant Narayin I.L.R. 1 Bom. 591. As the Subordinate Judge found that no sun remained due, and as the original advance is only alleged to have been Rs. 50, the case app ears to be one falling under Section 3 of the Act. There was no appeal, therefore, from the decision of the Court of first instance; and we, therefore, reverse the decision of the lower Appellate Court as having been made without jurisdiction. Each party to bear his own costs in the lower Appellate Court and here.

Parsons, J.

2. If the case had been one of first impression, I should have been inclined to hold that the words 'mortgaged property' in paragraphs (y) and (z) of Section 3 of the Dekkhan Agriculturists' Relief Act must be construed to mean 'admittedly mortgaged property,' and that the provisions of Section 10 could not apply to cases where the mortgage was denied and title had to be proved. The point, however, (is concluded by authority--Rupchand Khemchand v. Balvant Narayan I.L.R. 1 Bom. 591 and Gobind Singh v. Kallu I.L.R. All. 778 --and I follow that authority. At the same time 1 must express my opinion that an amendment of the Act is necessary, for it is not right that under an Act passed only to relieve the agricultural classes from indebtedness, Subordinate Judges of the Second Class should be authorized to deal with questions which affect titles to immoveable property, and to dispose of them with final effect, on the mere allegation of the plaintiff that such property was mortgaged, and that the amount due on the mortgage at the date of suit was less than Rs. 100.


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