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Ganesh Raghunath Deshpande Vs. Rajaram Laxman Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 396 of 1930
Judge
Reported inAIR1934Bom32; (1933)35BOMLR1123
AppellantGanesh Raghunath Deshpande
RespondentRajaram Laxman Deshpande
DispositionAppeal allowed
Excerpt:
.....act (iv of 1882), section 91-dekkhan agriculturists' relief act (xvii of 1879), section 15d-suit for redemption-person interested in equity of redemption can redeem-suit for redemption maintainable even though plaintiff prays for declaration of hit share in the property.;under section 91 of the transfer of property act, 1882, a parson having any interest in the property mortgaged can institute a suit {or redemption of the mortgage. he need not be the original mortgagor or any person claiming through or under him.;similarly, section 15d of the dekkhan agriculturists' relief act, 1879, places no limitation to the effect that a suit can only be brought by the person who is the original mortgagor or by any other person claiming through or under him. the words of the section are wide..........apparently interested in the property along with the plaintiff. prior to the institution of this suit, defendants nos. 16 and 17 had filed suit no. 939 of 1924. on knowing of the institution of the suit, plaintiff applied to the court to add him as a party to the suit, but his application was rejected. plaintiff thereupon brought the present suit, impleading all necessary and proper parties. the two suits were consolidated by order of the trial court which negatived the protest of defendants nos. 16 and 17 against the consolidation. the trial court held that the property in suit belonged to three of the branches of the family shown in the pedigree, and that besides the branch of defendant no. 16, waman rajaram of a second branch from whom the present plaintiff is descended and shripad.....
Judgment:

Shingne, J.

1. The plaintiff brought this suit for accounts under Section 15D of the Dekkhan Agriculturists' Relief Act. The plaintiff is a member of a family which is shown in the pedigree given in the judgment of the trial Court. The suit is in connection with two mortgages executed by one Govind Sadashiv shown in the pedigree. The way in which the various defendants to the suit are connected has been clearly stated by the trial Court. It is sufficient to state that defendants Nos. 14 to 17 are apparently interested in the property along with the plaintiff. Prior to the institution of this suit, defendants Nos. 16 and 17 had filed suit No. 939 of 1924. On knowing of the institution of the suit, plaintiff applied to the Court to add him as a party to the suit, but his application was rejected. Plaintiff thereupon brought the present suit, impleading all necessary and proper parties. The two suits were consolidated by order of the trial Court which negatived the protest of defendants Nos. 16 and 17 against the consolidation. The trial Court held that the property in suit belonged to three of the branches of the family shown in the pedigree, and that besides the branch of defendant No. 16, Waman Rajaram of a second branch from whom the present plaintiff is descended and Shripad Vithal belonging to the third branch from whom defendants Nos. 14 and 17 are descended, had shares in the mortgaged property and that the plaintiff's share was not barred by adverse possession. The Court also found the sum due on the mortgages. In suit No. 939 of 1924 the Court passed a decree for redemption and it is stated that defendants Nos. 16 and 17, who were plaintiffs to the suit, have paid off the amount and got possession of the mortgaged property. The Court, however, decreed that plaintiff in this suit should get his share (whatever it may be) in the mortgaged property from the plaintiffs in suit No. 939 of 1924 by paying them money proportionate to his share. Thus, though plaintiff was held to have an interest in the property, his share was left unascertained. On appeal by defendants Nos. 16 and 17, the lower appellate Court dismissed the present suit on the ground that it was not maintainable, and the plaintiff has as a consequence appealed to this Court.

2. The contentions raised by the defendants have been summarised by the trial Court. I propose only to take up points urged before me. The first point argued is that the plaintiff is not entitled to redeem at all because the mortgages in suit were not executed by him nor by any person under whom he claims. I do not think that there is any force in this contention. Section 91 of the Transfer of Property Act enacts, inter alia, that besides the mortgagor, any person (other than the mortgagee of the interest sought to be redeemed) having any interest in the property can institute a suit for redemption of the mortgaged property. Thus, what is wanted by Section 91 is that the person seeking to redeem has a proprietary interest in the mortgaged property. He need not be the original mortgagor or any person claiming through or under him. It has been held that junior members of a Malabar tarwad have a proprietary interest in the property, though they are disentitled by their personal law from redeeming : Soopi v. Mariyoma I.L.R. (1919) Mad. 393 Section 83 of the Transfer of Property Act, as it originally stood, enacted:

At any time after the principal money has become payable and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.

This provision is substantially preserved even by the Amending Act of 1929. By Section 91 a person interested in the equity of redemption can, as stated above, institute a suit for redemption. Order XXXIV, Rule 1, enacts :

Subject to the provisions of this Code, all persons having an interest either in the mortgage Security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Having regard to these provisions, it is clear that there is no force in the contention advanced on behalf of the respondents. Plaintiff claims an interest in the mortgaged property and it is clear from the pedigree that he is apparently interested in the mortgaged property. Whether that interest of the plaintiff is lost by adverse possession or not is a matter to be determined on evidence. The pedigree given in the trial Court is admitted and proved to be correct. If so, the suit is maintainable as plaintiff is interested in the property. It may be that if the plaintiff has lost his interest by adverse possession, his claim will fail on that ground.

3. It was next contended that a suit of this kind is not covered by Section 15D of the Dekkhan Agriculturists' Belief Act. The argument is based on the terms of the section itself as also on a number of decisions under the Act, which I shall refer to in a moment. The relevant portion of Section 15D is as follows :-

Any agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount.

It was not contended before me that plaintiff is not an agriculturist. He was held to be an agriculturist by the trial Court. Property in which he claims an interest has been mortgaged. The section places no limitation to the effect that a suit under Section 15D can only be brought by the person who is the original mortgagor or by any other person claiming through or under him. Supposing a manager of a Hindu joint family in his capacity as such manager mortgages a property belonging to the family and subsequently sides with the mortgagee and refrains from redeeming the mortgage, if the contention for the respondents were to be accepted, it will not be open to any other member of the family to institute a suit for redemption. The Dekkhan Agriculturists' Belief Act is intended to benefit a certain class of agriculturists. The Act gives a wide meaning to the term 'agriculturist', so that Section 2 in its second part enacts as follows :-

In Chapters II, III, IV, V and VI, and in Section 69, the term 'agriculturist', when used with reference to any suit or proceeding, shall include a person who when any part of the liability which forms the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law.

Therefore, the words 'any agriculturist whose property is mortgaged may sue for an account', as used in Section 15D, should not be taken in the restricted sense sought to be given to them by the learned advocate for the respondents. The words are wide enough to include a person who is interested in the equity of redemption provided he is an agriculturist within the meaning of the term as defined in the Dekkhan Agriculturists' Belief Act, though he may not be the original mortgagor or a person claiming through or under him.

4. The second objection as to the non-maintainability of the suit is based on the ground that this is not a pure and simple suit for redemption but is really a suit to establish plaintiff's right, title and interest in the property. No doubt, the plaint, as summarised in the judgment, alleges that plaintiff has a 1/3rd share in the mortgaged property, and in deciding the suit the Court will have to determine whether he is entitled to redeem and what is the extent of his share, but, in my opinion, all this is not sufficient to prevent the plaintiff from suing under Section 15D. The contention is based on certain decisions. The first case cited in support of it is the Privy Council decision in Mt. Bachi v. Bickchand (1910) 13 Bom. L.R. 56 In that case, a mortgage was executed by three persons named Saindino, Mitho and Sachedino in favour of two persons named Bickchand and Dipchand. The property mortgaged was 500 acres of land. The principal amount was Rs. 1,700. Subsequently Mitho and and his brother sold 122 acres out of the 500 acres to the mortgagees by a sale-deed which recited that the consideration for the sale was the sum due on the mortgage which was expressed to be cancelled. The mortgagors obtained possession of the rest of the property. Bickchand and Dipchand sold the 122 acres to one Kherajmal and placed him in possession. The heirs of Sachedino and Saindino instituted a suit against Kherajmal and the original mortgagees. The plaint alleged that the plaintiffs were not bound by the subsequent sale to Kherajmal and that the mortgage should be regarded as subsisting in regard to 122 acres sold as above. The relief sought was the redemption of a two-thirds of the said 122 acres after taking accounts under the Dekkhan Agriculturists' Relief Act. It was held, the special relief under the Dekkhan Agriculturists' Relief Act could not be granted in a suit which was in form a redemption suit but in reality was a suit to recover property of which the rightful owner had been deprived by fraud. The second case cited is that of Chandabhai v. Ganpati : AIR1916Bom199 . In that case lands were mortgaged by plaintiffs' father. On his death, the plaintiffs being minors, their mother sold some of the lands to the mortgagee's son. Plaintiffs brought a suit for redemption, alleging that the sale by their mother was unauthorised and was unlawful and that the suit was instituted to get the sale-deed cancelled. It was prayed that on deciding that whatever transactions may have been entered into by their mother were not binding on the plaintiffs, it should be held that all the lands have become free from mortgage-apparently as the result of the payment of vasul to the mortgagee. It was held that the suit was not a mere suit to redeem but was a suit primarily for the setting aside of a fraudulent deed of sale. The third case referred to was that of Krishnaji v. Sadanand : AIR1924Bom417 . In that case certain co-sharers (one of whom had a younger brother) had effected a mortgage of joint property. One of them sold his equity of redemption to the mortgagee who sold the share to the contending defendants. The equity of redemption of the other co-sharers was sold at an auction sale. The purchaser at the auction sale ultimately sold his interest to the contending defendants. The heirs of the original co-sharers purported to sell the whole of the mortgaged property to the plaintiff who brought a suit for account under the Dekkhan Agriculturists' Relief Act. There were other facts which need not be stated here. It was held that the suit Was not maintainable. Sir Norman Macleod C.J. observed (p. 344) :-

It will bo seen...that a suit of that kind will only lie on the presumption that there was a mortgage in existence...and that an issue whether or not a mortgage was in existence could not be entertained.

The fourth case cited was that of Chandikaprasad v. Shivappa : AIR1928Bom425 . In that case lands belonging to a Hindu joint family consisting of plaintiffs Nos. 1 and 2 and their uncle defendant No. 7 were mortgaged with the father of defendants Nos. 1 to 4. Thereafter, defendant No. 7, purporting to act as manager of the family, sold the equity of redemption to the mortgagee. Subsequently, the plaintiffs sued to redeem their half share in the lands. It was held that the sale-deed executed by their uncle could not be absolutely ignored by the plaintiff's and as a consequence it was not competent to them to resort to the special provisions of the Dekkhan Agriculturists' Relief Act. It is, however, important to note that the suit was allowed to be treated as an ordinary suit without any reference to the Dekkhan Agriculturists' Relief Act. A fifth case was also referred to. It is the decision in Vishvanathbhat v. Mallappa : AIR1925Bom514 . In that case, during the minority of the plaintiff, his mother had sold certain lands to defendant's father. Plaintiff on coming of age sued to recover possession of the lands. He prayed that the sale-deed was not binding upon him. He also prayed in the alternative that the sale-deed was of the nature of a mortgage and that the amount of consideration was paid, out of the profits of the lands or that accounts should be taken under the Dekkhan Agriculturists' Relief Act, It was, however, held that the suit was one to set aside a sale-deed and did not fall within the class of suits specified in the Dekkhan Agriculturists' Relief Act.

5. All these cases are entitled to respectful consideration. 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 last case, the fifth one out of the above cited cases, there was a sale-deed and the suit was for setting aside the deed, which was alternatively stated to be a mortgage. In the present case before me there is no such complication. The mortgage was admittedly subsisting at the date of the suit and the plaintiff is apparently a person interested in the mortgage. It was urged that there is a dispute as to whether the plaintiff's share in the property was lost by adverse possession and that there is further dispute as to the quantum of the plaintiff's share. I do not think that the existence of such dispute will bring the present case within the ratio decidendi of the above cases. In a suit under Section 15D, it is possible that various contentions of a complicated nature may be raised by the mortgagee. In some of the eases falling under Section 15D, the mortgagee may, for instance, for the mere sake of raising contentions question the right of the plaintiff to institute a suit. It will be unjust to throw out a suit as a consequence and to afford to the mortgagee an easy way to get the case out of Section 15D. The section, having regard to the object of the Dekkhan Agriculturists' Relief Act, must be construed liberally.

6. Assuming for a moment that this case is, as ruled in the above cases, not of the kind contemplated by Section 15D of the Dekkhan Agriculturists' Relief Act, I think that, having regard to the course of events in this case and to the order of the trial Court that the plaintiff should pay full Court-fee, it is a fit case in which, following the course adopted in Chandikaprasad v. Shivappa, the suit should be treated as an ordinary suit for redemption. If instead of bringing a suit under Section 15D, plaintiff had brought a suit to redeem under the ordinary law, no contention as to the plaintiff's right to redeem, as was taken in the present suit, could have prevailed by way of a preliminary objection. The plaintiff has been contending that he is entitled to redeem . On knowing that a suit was instituted by defendants Nos. 16 and 17, he prayed for being joined in the suit but failed in that respect, and, as appears from paragraph 26 of the judgment, even the trial Court possibly felt that suit No. 239 of 1924 was defective in respect of parties. The Court, however, went on with the suit. Evidence was given and the trial Court found that plaintiff's branch had an interest in the property and that there was no bar of adverse possession to the suit. The amount due on the mortgage was also determined. What was left undetermined was the quantum of plaintiff's share, which, as one of the issues in the case indicates, was intended to be determined but was not. It is too late now to throw out the suit. It is deserving of notice that though defendant No. 17 belongs to a different sub-branch, he is allowed to redeem. It is thus difficult to appreciate why plaintiff should not be allowed to redeem if his right is not barred by adverse possession.

7. Having regard to my conclusion as stated above, I reverse the decree of the lower appellate Court, and inasmuch as defendants Nos. 16 and 17 have, it is stated, redeemed the original mortgages, I hold that the plaintiff would be entitled to redeem his share in the mortgaged property upon payment of the proportionate portion of the mortgage money, provided his right to redeem is not barred by adverse possession. The lower appellate Court should, therefore, dispose of the case on merits on all points except the point as to the status of the plaintiff, and if it is held that the plaintiff has got a subsisting right to redeem, it should pass a decree in his favour allowing him redemption, and I further direct that the decree should also direct that he be placed in possession, by partition, of a portion of the property in proportion to his share which should, be fixed by the lower appellate Court, on payment, of course, to defendants Nos. 16 and 17 of a proportionate sum of money having regard to his decreed share. If it is felt necessary to take additional evidence to determine the quantum of plaintiff's share, the appellate Court may do that or direct the trial Court to do that.

8. Appellant-plaintiff will be entitled to his costs of this appeal. The costs of the lower appellate Court will be in the discretion of that Court. The order as to coats of the trial Court is left undisturbed.


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