1. The property in suit was first mortgaged by its owner to Govind and his two brothers in the year 1886. In 1894 the land was again mortgaged to Govind for Rs. 2500. In the meantime it would appear that Govind's two brothers must have died because in 1895 Govind brought a suit upon the mortgage of 1886 and obtained a decree. The mortgage amount claimed was Rs. 2000. Govind obtained permission to bid at the sale of the property, and also applied to the Court that that sale should be ma subject to his own second mortgage of 1894. It appears that this application was at first rejected, but the sale-certificate shows that the property was sold subject to Govind's second mortgage of Rs. 2500, and was purchased by Govind himself for Rs. 1791. Govind is the grandfather of the present minor plaintiff. Govind appears to have had two sons, Ganesh, the father of the plaintiff, and Narayan, whose widow is the defendant in this suit. Ganesh predeceased Govind. The defendant's husband survived Govind by a short time, both dying in the year 1904. Therefore, the family appears to have consisted before the death of Govind, of Govind, his son Narayan, and his grandson, the plaintiff. On the death of Govind the family consisted of Narayan and the plaintiff, and on the death of Narayan the ordinary result would have been that all the joint family property would have come into the sole and exclusive ownership of the minor plaintiff. But in 1905 it appears that a partition was sanctioned by the District Court of Nasik between the minor plaintiff and his aunt, the defendant, the latter taking in the proportion of 6/16ths. Speaking for myself I must record my surprise that any arrangement of that sort should have been come to sanctioned by the District Court, since on the facts, which have been stated on appeal, it appears to me perfectly clear that the minor was entitled to the whole of the joint family property, whatever it may have been, and the defendant merely to maintenance.
2. Reverting to what happened in 1895, when Govind redeemed the first mortgage of 1886, it would appear that as a result of that sale and his purchase, the property, which was the subject-matter of that mortgage and his own subsequent mortgage of 1894, became his exclusive property, or that of the joint family of which he was a member.
3. It has been contended on behalf of the plaintiff that having regard to the terms of the sale-certificate, we are bound to hold that Govind kept alive the charge represented by his second mortgage of Rs. 2500 upon this property in his own interest within the language and intention of Section 101 of the Transfer of Property Act.
4. Now, when the partition of 1905 was effected a very curious procedure was adopted, as apparently the officer entrusted with making lots put up all the documents, which had the appearance of being valuable securities, in sixteen packets, of which the defendant drew six and the plaintiff ten. Very unfortunately, I think, one of those lots contained the sale-certificate of 1895, and the other the mortgage-deed of 1894. The former was drawn by the defendant, who has ever since been in actual possession of the property. The latter was drawn by the minor plaintiff, who now seeks to enforce it against the defendant, as though the relations subsisting between them were the ordinary relations of mortgagor and mortgagee.
5. In our opinion, it is clear that after what has occurred in 1895. Govind could have had no right to sue himself in a double capacity as mortgagee under the mortgage of 1894, and mortgagor under the sale-certificate of 1895. We think that as he could have had no cause of action against himself, it is impossible that those who claim under him as heirs should have any cause of action against each other upon the same materials. For these reasons, we are of opinion, that the decision of the lower appellate Court is right and ought to be confirmed with all costs.