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Hanmanta Yamaji Patil and anr. Vs. Gopal Sadashiv Shimij and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.264a
AppellantHanmanta Yamaji Patil and anr.
RespondentGopal Sadashiv Shimij and ors.
Excerpt:
hindu joint family - decree against some, binding on the rest--admissions and conduct--estoppel--mortgage--redemption--adverse possession--civil procedure code (act v of 1908), section 103. - .....the right, title and interest of their co-parceners, bagaji and pandu. if the plaintiffs were not parties to the decree or were not bound by it and also the sale consequent upon it, the mortgagee as to them could not by his court-purchase turn his possession into that of a trespasser so as to extinguish the right of redemption of the mortgagors, who were not parties to the decree, after twelve years from the date of that purchase.2. though we cannot agree with the district judge on the question of adverse possession, we must confirm his decree upon a point, which, though not raised by him, had been raised in the first issue in the subordinate judge's court. the mortgage here had been by the members of a joint hindu family. against some of them a money decree was obtained by a third.....
Judgment:

1. The District Judge has held that the plaintiffs' right to redeem is barred by the adverse possession of the defendants (respondents) upon the ground that the decree, in execution of which the defendants' predecessor-in-title purchased the property at a Court sale, was one to which the plaintiffs were not parties, and that what was sold in execution was simply the right, title and interest of their co-parceners, Bagaji and Pandu. If the plaintiffs were not parties to the decree or were not bound by it and also the sale consequent upon it, the mortgagee as to them could not by his Court-purchase turn his possession into that of a trespasser so as to extinguish the right of redemption of the mortgagors, who were not parties to the decree, after twelve years from the date of that purchase.

2. Though we cannot agree with the District Judge on the question of adverse possession, we must confirm his decree upon a point, which, though not raised by him, had been raised in the first issue in the Subordinate Judge's Court. The mortgage here had been by the members of a joint Hindu family. Against some of them a money decree was obtained by a third party and. in execution thereof the mortgagee became a purchaser of the right, title and interest of the judgment-debtors. By their conduct and admissions thereafter the other co-parceners, that is, the plaintiffs, treated the decree and the Court sale consequent upon it as one binding upon them, It is true that mere admissions by a mortgagor or an understanding between him and his mortgagee that the mortgagee has become owner cannot destroy the equity of redemption and take the case out of the rule in Ramji v. Chinto 1 B.H.C.R. 199 see Yellappa bin Mudkappa v. Venkawa kom Bhimappa (1889) P.J. 335. But the cases where that was held are plainly distinguishable from the present. In each of those cases as a matter of fact, after the mortgage, to redeem which the suit was brought, there had been no transaction of purchase subsequent to, separate from and independent of the mortgage, to extinguish the mortgagor's right to redeem. All that was relied upon in each of those cases was that, giving effect to the forfeiture clause in the mortgage-deed, according to which if the mortgage amount were not paid on a certain date the mortgage should be at an end and the mortgagee should become owner, there had been an understanding arrived at between the parties or admissions were made by the mortgagor that the mortgagee had become owner by purchase. In such a case it was held that the doctrine of Ramji v. Chinto 1 B.H.C.R. 199 still applied, because there was no transaction apart from the mortgage to turn it into a sale in favour of the mortgagee. But here there was a subsequent purchase--in fact a sale by the Court in execution of a decree. It is true that that decree was against some of the mortgagors only but it is admitted that they were the plaintiffs' co-parceners. Under the Hindu Law, a decree obtained against one co-parcener does not ordinarily bind the other co-parceners unless the former was a manager of the joint family and the decree was for a family debt. The other co-parceners may by their conduct show that it is such a decree and therefore binding upon them. Here the plaintiffs acted in such a way as to warrant the inference that the decree and the sale bound them in substance though they were not formally parties to either. This is clear from their admissions and conduct. It is open to us to draw this inference of fact in second appeal under Section 103 of the new Civil Procedure Code--the point being one which the lower appellate Court has omitted to decide, though it was expressly raised in the first Court. On these grounds the decree must be confirmed with costs.


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