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Haranbhai Jivabhai Vs. the Collector of Kaira - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 158 of 1918
Judge
Reported in(1921)23BOMLR1046
AppellantHaranbhai Jivabhai
RespondentThe Collector of Kaira
Excerpt:
.....talukdars act (bom. act vi of 1888), see. 29 b-sanadia land of talukdar- mortgage of the land by talukdar-mortgagee mortgaging his mortgage rights in the land to plaintiff-estate of the talukdar taken under management by the taltukdari settlement officer-notice to claimants against the talukdar's estate-mortgagee's heir, a minor then and also at date of suit, not. notifying his coaim-plaintiff also not notifying their cleium - ejectment of the plaintiff by the talukiari settlement officer-plaintiffs' right to possession of the land.;the sanadia land of a talukdar was mortgaged by him in 1891 to b, who mortgaged his mortgage rights in the land to the plaintiffs in 1900. subsequently, when the estate of the talukdar came into the possession of the talukdari settlement officer as manager..........of section 29 b of the gujarat talukdars act. but the learned judge has dismissed the plaintiffs' claim to possession on the ground that the question between the minor mortgagee and the talukdar does not arise in the plaintiffs' suit, and that as between the talukdar and the plaintiffs it was the duty of the plaintiffs to notify this claim against the property and as they have not done so they are not protected in respect of their sub-mortgage. that, i think, was a wrong conclusion because the plaintiffs claimed under the mortgagee, and as long as the mortgagee's rights are in existence the plaintiffs can sue the mortgagee for all those of rights which the mortgagee will still be entitled to claim against the mortgagor and they are entitled to remain in possession as long as the.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs filed this suit to recover possession of the plaint property with 11s. 100 for damages for crops. Their claim to recover possession was disallowed by the learned District Judge, and they were only given a decree for Rs. 100. The plaint property belonged originally to the Talukdar of Dehwan. But it was not strictly speaking Talukdari land but Sanadia land situated in the village of Ras which happened to belong to the Talukdar.

2. The question might arise whether the provisions of the Gujarat Talukdars Act VI of 1888 would apply to such land. But that question need not be considered because on other grounds we think the plaintiffs are entitled to recover possession The landa were mortgaged by the Talukdar to oneBapu Hira. Bapu Hira died and his heirs mortgaged their mortgage rights in these and other landa to the present plaintiffs. When the Talukdari estate came into the possession of the Talukdari Settlement Officer as manager in 1905, that officer called on the creditors of the as-tate to notify their claims. The plaintiff's though not creditors of the Talukdari estate would certainly be interested in their debtor, who was a creditor, notifying his claim to the Tulukdari Settlement Officer. But neither the plaintiffs nor their debtors, the original mortgagees, notified the claim. If there had not been a question that the representative of the original mortgagee, or one of the representatives, was a minor, then we should have to consider whether the Act applied to these private lands. But the Judge has found that one of the representatives of the original mortgagee, Bapu Hira, was a minor and was still a minor, so that on account of his minority he will still be entitled to claim against the Talukdar in spite of the provisions of Section 29 B of the Gujarat Talukdars Act. But the learned Judge has dismissed the plaintiffs' claim to possession on the ground that the question between the minor mortgagee and the Talukdar does not arise in the plaintiffs' suit, and that as between the Talukdar and the plaintiffs it was the duty of the plaintiffs to notify this claim against the property and as they have not done so they are not protected in respect of their sub-mortgage. That, I think, was a wrong conclusion because the plaintiffs claimed under the mortgagee, and as long as the mortgagee's rights are in existence the plaintiffs can sue the mortgagee for all those of rights which the mortgagee will still be entitled to claim against the mortgagor and they are entitled to remain in possession as long as the mortgagee who is their mortgagor can claim his mortgage rights against the Talukdar. The appeal, therefore, must be allowed, and in addition to the decree for Rs. 100 for damages, there must be a decree in favour of the plaintiffs to recover possession of the plaint property with costs throughout. There must be an inquiry as to mesne protits from the date of suit until possession is restored or three years from today.

Shah, J.

3. I agree.


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