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Gulam Gous Mia Khot Vs. Shriram Pandurang Jairamrao - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 826 of 1917
Judge
Reported inAIR1919Bom78; (1919)21BOMLR353; 51Ind.Cas.79
AppellantGulam Gous Mia Khot
RespondentShriram Pandurang Jairamrao
Excerpt:
.....of other plaintiffs--mortgage made by several mortgagors--all mortgagors jointly interested--redemption suit can only be brought after making all of them parties.;in 1895, the plaintiff's father (a mahomedan) mortgaged his property to the father of defendants nos. 1 and 2. the mortgagor having died, his widow sold the equity of redemption to the mortgagee in 1901 and placed him in possession of the property, although she was entitled to only an eighth share in it. at that time, one of the mortgagor's daughters (plaintiff no. 3) had already attained majority; and his son (plaintiff no. 1) did so in 1908. the second daughter (plaintiff no. 2) was a minor at the date of the suit. the three plaintiffs, who owned the remaining seven shares, sued in 1914 to redeem the mortgage. the lower..........cannot redeem in the absence of the other. where two different estates are mortgaged, the person entitled to redeem one estate cannot bring an action to redeem without making the person entitled to redeem the other estate a party (see cholmondeley v. clinton (1820) 2j. & w. 134). for this purpose there is no difference between a mortgage of two different estates or two undivided shares of the same estate.' for this reason neither of the plaintiffs who attained majority more than three years before the date of the institution of this suit was qualified to discharge or release the equity of redemption. the right was indivisible and the suit having been brought within three years of the date when the youngest plaintiff attained majority is within time.shah, j.4. i concur. i desire to add.....
Judgment:

Basil Scott, C.J.

1. Mia Khot in 1895 mortgaged the property in suit to Jairam, the father of the defendants 1 and 2. In 1901 the mortgagor being dead his widow purported to sell the equity of redemption to Jairam. Jairam subsequently sold his interest in the property to the defendant 3.

2. The sale by the mortgagor's widow could only transfer her 1/8th share as a Mahomedan widow to the mortgagee: the remaining 28/32 in the equity of the redemption belonged to the plaintiff's, the son and daughters of the deceased. The present suit was filed on the 21st of April 1914 for redemption. The defence is that the suit is as to all the plaintiffs' interests except that of plaintiff No. 2 barred by limitation because Jairam obtained possession at the time of the sale, the plaintiff No. 3 was a major at that date and the plaintiff No. 1 became a major in May 1908 and did not sue for redemption or possession within three years. The lower Court has held the suit barred as regards the plaintiffs 1 and 3 under Article 144 read with Section 6 of the Limitation Act on the ground that the possession of Jairam became adverse in 1901.

3. This conclusion, however, appears to be inconsistent with Section 7 of the Limitation Act, according to which, where out of several persons jointly entitled to sue one is under disability and a discharge cannot be given in respect of the cause of action by any other of them, time will not run until the disability has ceased. Here the cause of action in the plaintiffs is the equity of redemption. The mother has not discharged and was not qualified to discharge it. Mr. Justice Chitty in Bolton v. Salmon [1891] 2 Ch. 48, 52, said: 'Where a mortgage is made by two tenants-in-common, both of them must be parties to the action to redeem; one cannot redeem in the absence of the other. Where two different estates are mortgaged, the person entitled to redeem one estate cannot bring an action to redeem without making the person entitled to redeem the other estate a party (see Cholmondeley v. Clinton (1820) 2J. & W. 134). For this purpose there is no difference between a mortgage of two different estates or two undivided shares of the same estate.' For this reason neither of the plaintiffs who attained majority more than three years before the date of the institution of this suit was qualified to discharge or release the equity of redemption. The right was indivisible and the suit having been brought within three years of the date when the youngest plaintiff attained majority is within time.

Shah, J.

4. I concur. I desire to add that even treating the possession of the mortgagee and his transferee as the possession of a purchaser and not that of a mortgagee; I think the result would be the same. The plaintiffs as co-sharers would be jointly entitled to sue him in respect of their shares for partition, and none of them would be competent to give a discharge in respect of the whole interest not vested in the purchaser. Thus under Section 7 of the Limitation Act the right of the three plaintiffs to recover possession of 28/32nd share in the property would be within time, as the claim of one of them, who was under a disability, is within time. The purchaser in possession would be equitably entitled to have his rights under the simple mortgage satisfied before he can be called upon to part with his possession. The result is substantially the same as if he were a mortgagee in possession with this difference that he may not be liable to account as a mortgagee in possession.


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