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Budhmal Kevalchand Vs. Rama Yesu Sangle - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 142 of 1913
Judge
Reported in(1920)22BOMLR68
AppellantBudhmal Kevalchand
RespondentRama Yesu Sangle
DispositionAppeal dismissed
Excerpt:
.....of equity of redemption after the date of mortgage-suit on mortgage against one part-owner of the equity of redemption-suit against other part-owners barred by limitation-mortgagee cannot be allowed to throw the burden of the whole mortgage on one part- proportionate liability-apportionment.;a mortgage was executed in 1870. the equity of redemption was, in 1883, sold to defendant no. 5 and another, who later separated and divided it half and half. the plaintiff mortgagee brought a suit to recover the full amount of mortgage money with interest by sale of the mortgaged. property in the hands of defendant no. s. the owner of the remaining moiety of the mortgaged property was not made a party to the suit, and the claim against him became barred by limitation. the trial court apportioned..........two purchasers separated. half the equity of redemption came to the fifth defendant, one-fourth to kashi ramji, and one-fourth to dada kashi, by sale from kashi ramji. kashi ramji and dada kashi ought to have been made parties to the suit under order xxxiv, rule 1, of the civil procedure code, but the plaintiff refused to make them parties, because as a matter of fact his claim against them had become time-barred. he now seeks to throw the whole burden of the mortgage on half the property, the equity of redemption in which came to defendant 5. an exactly similar case arose in imam ali v. baij nath ram sahib i.l.r(1906). cal. 613 p.c;their lordships there remarked:in the case before us, all the properties comprised in the mortgage are liable for the satisfaction of the debt and after.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover Rs. 500 for principal and Rs. 500 for interest, in all Rs. 1000, by sale of the property mortgaged by the father of the first defendant and the grandfather of defendants 2 to 4 to plaintiff's assignors Chaturbhur and Gumanchand Marwaris on the 28th October, 1870. It appears that the equity of redemption was sold in 1883 to the father of defendant 5 and another. Those two purchasers separated. Half the equity of redemption came to the fifth defendant, one-fourth to Kashi Ramji, and one-fourth to Dada Kashi, by sale from Kashi Ramji. Kashi Ramji and Dada Kashi ought to have been made parties to the suit under Order XXXIV, Rule 1, of the Civil Procedure Code, but the plaintiff refused to make them parties, because as a matter of fact his claim against them had become time-barred. He now seeks to throw the whole burden of the mortgage on half the property, the equity of redemption in which came to defendant 5. An exactly similar case arose in Imam Ali v. Baij Nath Ram Sahib I.L.R(1906). Cal. 613 P.C;Their Lordships there remarked:

In the case before us, all the properties comprised in the mortgage are liable for the satisfaction of the debt and after different persons have become interested in different fragments of the equity of redemption, the properties continue to be so liable; and all that the owner of any portion of the equity of redemption is legitimately entitled to ask is that not more than a rateable part of the mortgage debt should be thrown upon the property in his hands. This is manifestly just and the mortgagees cannot claim to throw the entire burden upon a portion of the mortgaged premises, because by reason of their own laches, they have lost their remedy as against the remainder.

2. This is what has happened in this case, and it is manifestly contrary to the principles of equity that the plaintiff, who by his own negligence, had lost his remedy against the owner of half the equity of redemption, should seek to throw the whole burden of the mortgage on the owner of the other half. In our opinion, therefore, the appeals fail and must be dismissed with costs.


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