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Bai Keval Vs. Madhu Kala - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 399 fo 1920
Judge
Reported in(1921)23BOMLR1191
AppellantBai Keval
RespondentMadhu Kala
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), see, 7-disability of one of the plaintiffs to sue-suit to redeem-suit brought by plaintiff's one of whom in minor-the adult plaintiff 'cannot give discharge for all the plaintiffs-suit in time-civil procedure code (act v of 1908) order xxxiv, rule 1-parties to suit.;on the death of a mortgagor, his two sons, one of whom was a major but die other was incompetent to sue owing to his minority, brought a suit to redeem the mortgage, at a time when so far as the adult plaintiff was concerned the right to redeem was barred by limitation :-;that the suit was in time with reference to both plaintiffs under section 7 of the limitation act, for there was nothing to show that the plaintiff who was a major could have given a discharge of the mortgage without the..........it was contended that the plaintiffs' such was barred under article 134 of schedule i of the indian limitation act. admittedly the suit was brought more than three years after the first plaintiff came of age, but less than three years after the second plaintiff came of age.2. the trial court in considering whether the provisions of section 7 of the indian limitation act applied considered that on referring to the form of the decree in a redemption suit it is the mortgagee who has to give a discharge and not the mortgagor, therefore section 7 did not apply at all. he considered, however, that the suit of the first plaintiff was barred by limitation. so he gave a decree to the second plaintiff only and directed that various amounts should be paid to the various defendants as stated.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued to redeem the plaint properties on payment by instalments of the sum that might be found due on taking accounts under the Dekkhan Agriculturists' Relief Act of the mortgage of the 19th July 1892. These properties were mortgaged by the plaintiff's father Kala to the deceased Kalyanchand. Kala died about eighteen years ago leaving the plaintiffs and their brother Shiva, now deceased, as his heirs. The first and second defendants are the representatives of Kalyanchand, while the other defendants are alienees from the mortgagee. There can be no doubt that the plaintiff's were entitled to redeem the properties still in the hands of the representatives of Kalyanchand. With regard to certain other properties which had been alienated, it was contended that the plaintiffs' such was barred under Article 134 of Schedule I of the Indian Limitation Act. Admittedly the suit was brought more than three years after the first plaintiff came of age, but less than three years after the second plaintiff came of age.

2. The trial Court in considering whether the provisions of Section 7 of the Indian Limitation Act applied considered that on referring to the form of the decree in a redemption suit it is the mortgagee who has to give a discharge and not the mortgagor, therefore Section 7 did not apply at all. He considered, however, that the suit of the first plaintiff was barred by limitation. So he gave a decree to the second plaintiff only and directed that various amounts should be paid to the various defendants as stated in the decree.

3. On appeal the learned Assistant Judge considered that as the equity of redemption was vested in all the heirs of Kala jointly, it was not open to the others to grant a valid discharge without the concurrence of Kika, the second plaintiff. He did not agree with the view of the Court below that Section 7 of the Indian Limitation Act did not apply. The decree of the lower Court was varied so as to make it in favour of both the plaintiffs while the amount payable to defendants Nos. 3 to 5 was increased by Rs. 200.

4. In the appeal before us it has been urged that Section. 7 of the Indian Limitation Act applied to the plaintiffs; the second plaintiff was one of several persons jointly entitled to institute a suit, and was under the disability of minority, but as a discharge could have been given without the concurrence of the second plaintiff by the first plaintiff, therefore time ran against both plaintiffs from the date the first plaintiff attained majority.

5. No doubt there is some foundation for the difficulties which the learned Subordinate Judge thought existed in applying the provisions of Section 7 of the Indian Limitation Act to a redemption suit, because it is difficult to say that the plaintiff seeking redemption gives a discharge to the mortgagee, but if the word 'discharge ' is given a wider meaning as including any form of quittance whereby the rights and liabilities between two parfciea are put an end to, it could be said that the plaintiff seeking redemption gives a discharge when he pays the mortgage debt and recovers possession of the mortgaged property from the mortgagee, thus putting an end to all rights and liabilities' between the parties, so that no further proceedings could be taken. But even assuming that the two plaintiffs were jointly entitled to file a suit for redemption, there is nothing to show, when the first plaintiff came of age, that the first plaintiff could have given a discharge without the concurrence of the second plaintiff. It is provided by the Civil Procedure Code that all parties interested in a mortgage must be parties to a suit on a mortgage; and certainly when the first plaintiff brought the suit for redemption, the second plaintiff was a necessary party; the question whether the first plaintiff could have carried the suit to its proper end without the concurrence of the second plaintiff, was never considered in the proceedings in either of the lower Courts. The case of Bapu v. Bala (1920) 22 Bom. .R. 1383. which was relied upon, was a suit of a different nature, as it was a suit by the sons of a Hindu mother to set aside alienations made by her during their minority, and it was found as a fact, when the case came before a in second appeal, that the plaintiff was the managing member of the family, and then he had a right, as soon as he attained majority and became such managing member, to bring a suit as such manager to recover not only his share of the alienated property but the whole of. the alienated property, including his minor brothers' shares. That being so, it was held that if the elder brother on attaining majority did not bring a suit to set aside the alienation within three years, then the other brothers would be barred. But in this case there is nothing on the record to satisfy us that the first plaintiff could have filed a suit to redeem the mortgage without the concurrence of the second plaintiff; and to that extent I think the decision of the Assistant Judge was right, although he has not considered the question from the point of view of the first and second plaintiffs being members of a joint Hindu family.

6. It must also be remembered that the right to redeem a mortgage of joint family property rests in all the members of the family whoever is the manager, and it is difficult to see how the right of the second plaintiff to redeem, which was in existence during his minority, could be defeated by the fact that his elder brother did not file a suit to redeem within the period allowed to him.

7. There is also this further fact that the minor's mother was alive land was managing the property after her husband's death. There is no evidence to show that the first plaintiff took over charge from his mother. It seems to me, therefore, that the second plaintiff would certainly be entitled prima facie to redeem the mortgage. The onus lay upon the defendants to show that he was barred, and they have not proved the facts that were necessary to create the bar. It follows that both the plaintiffs are entitled to redeem and though we are not in agreement with either of the judgments in the Courts below, the decree of the lower appellate Court is correct and the appeal must be dismissed with costs.

Shah, J.

8. I concur;


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