1. This second appeal arises out of a suit for redemption filed by the plaintiff Marutrao Dattatraya Uplawikar in the Court of the Second Joint Civil Judge, Junior Division, at Kolhapur. The lands in dispute are R.S. Nos. 293 and 294 which are held in Sub-Inam from the Dumaldar of the village. The plaintiff claimed to redeem the lands alleging that the lands in suit are mortgaged on 15-8-1913 by Appa Raghu and by Babaji who claimed to be the adopted son of Appa.
The plaintiff further alleged that Babaji was proved in suit No. 59 of 1921 not to have been adopted by Appaji and Kashibai grandmother of the plaintiff was the heir of Appa on intestacy, and ultimately on the death of Kashibai the plaintiff became entitled to all the property which was held by her, and therefore the plaintiff was entitled to redeem the suit lands.
2. The suit was resisted by the defendants who are the heirs of the legal representative of the original mortgagee and the Dumaldar of the village as well. The defendants contended that the plaintiff was not the heir of the original mortgagor, that Kashibai had not inherited the suit property from Appaji Raghu or Babaji Appa; that the plaintiff was not the heir of Kashibai and he had not become the owner of the property by a gift deed from her as alleged by him; that the decree passed in the litigation between Kashibai and Babaji, were not binding upon the defendants; that the plaintiff's claim in respect of R.S. No. 293 was barred as res judicata by reason of certain decision in revenue appeals; that the plaintiff's suit was barred by limitation Kashibai having failed to file a suit to set aside the order passed in the revenue proceedings; and that the title of the plaintiff was extinguished by adverse possession.
3. The contentions raised by the defendants were negatived by the learned trial Judge and a decree was passed by the trial Court in favour of the plaintiff for redemption. In appeal to the District Court at Kolhapur, the decree passed by the trial Court was substantially confirmed. The first defendant has come to this Court in second appeal.
4. The lands in suit were originally held in Inam. The Inam grant was made by the Inamdar to the predecessor-in-interest of Appa Raghu; the lands are now converted into Rayatvari land. It was urged by Mr. Rege on behalf of the first defendant that the Vat Hukums of the Kolhapur Government applied to Sub-Inams created by Inamdars, and therefore, Appaji having died, even in the case of the plaintiff, 'Nashtansh' the right to the lands devolved upon the Inamdar, and the plaintiff even if the lineal descendant of Appaji was not entitled to file a suit.
Ex facie there is nothing in the Vat Hukums which have been set out in detail by the learned appellate Judge which would support the contention sought to be advanced by Mr. Rege. But assuming that the Vat Hukums apply to Sub Inams of the nature of the Inam under which the lands were held by Appaji in the present case, the right of the mortgagee, who was also the Dumaldar, in respect of the land can arise only after Appaji was proved to have died 'Nashtansh'.
A large number of decisions of this Court have now taken the view that the expression 'Nashtansh' does not mean dying without lineal descendants as assumed in some of the decisions of the Kolhapur Courts, but it means the absence of all known heirs; and evidently Kashibai who was the daughter-in-law of Appaji's brother Anna was an heir to the estate of Appa.
The plaintiff who is the daughter's son of Kashibai was therefore entitled to inherit the estate of Appa. Appa therefore cannot be regarded as having died 'Nashtansh'. It is unnecessary to consider whether the Vat Hukums issued by the Kolhapur Government apply to Sub-Inams of the nature of the sub-inam in the present case. Even on the assumption that they apply the plaintiff would be entitled to file a suit for redemption.
5. Mr. Rege then contended that Kashibai ought to have filed a suit within six yearsfrom the date on which the revenue Courtsnegatived her claim and entered the propertyin suit in the name of Dumaldar. But if Kashibai stepped into the shoes of the originalmortgagor she was entitled to redeem the property at any time, and any decision of the revenue Courts in accordance with which an entrycontrary to her claim was made could not operate to deprive her of the right to redeem theproperty within the normal period of limitation.
6. Then Mr. Rege contended that the claim made by the plaintiff was extinguished on account of adverse possession. But the possession of the defendants was as mortgagees in possession, and no mortgagee by making any declaration as to the nature of his possession can extinguish the right of the mortgagor to the mortgaged property to redeem it.
A mortgagee in possession of mortgaged property is a trustee for the mortgagor and so long as his right to redeem the property is outstanding declaration made by the mortgagee as to the nature of his possession cannot affect the right of the mortgagor in the property mortgaged. In my view there is no substance in any of the contentions raised by Mr. Rege.
7. The appeal therefore fails and is dismissed with costs.
8. Appeal dismissed.