1. The plaintiff appellant, purchaser from the heirs of the mortgagor, sued to redeem from the defendants-respondents a mortgage of 1876. The respondents relied on an agreement to sell passed by two out of the three brothers and joint coparceners, heirs of the mortgagor, and claimed Rs. 500 for improvements, in case redemption was allowed. Both the lower Courts allowed redemption only in respect of the one-third share appertaining to the third brother who was not a party to the agreement to sell and rejected the respondents' claim for Rs. 500 for improvements for redemption of the whole, The plaintiff appeals. The defendants have filed cross-objections for improvements.
2. It is argued for the appellant that the agreement by the two brothers being to sell not their respective shares but the entire property, they could not convey even their own shares and that possession having already been with the respondents as mortgagees, the doctrine of part performance has no application. It is pointed out that ill. (2) to Clause (c) of Section 27 of the Specific Relief Act refers to a contract to sell a share and not the entire property, and by joint tenants not by coparceners. In regard to the claim for improvements, it is argued that to spend Rs. 500 on property mortgaged for Rs. 100 is in fact to improve it beyond redemption and that the Courts have consistently declined to allow the mortgagee the cost of such improvements.
3. The respondents rely on the doctrine of part performance and the consistent series of decisions of this Court from the Full Bench case of Bapu Apaji v. Kashinath Sadoba I.L.R(1916) Bom. 438, s. c. 19 Bom. L.R. 100, f. b. w. With regard to improvements reliance is placed on Section 51 of the Transfer of Property Act.
4. Without entering into the detailed genealogy of the parties, it is conceded that the mortgagor's right vested in the three brothers and that out of them only two passed the agreement (Exhibit 163) in 1906 to sell the entire property in favour of the respondents and that the appellant represents the surviving coparcener of the joint family, the third brother who was not a party to the agreement. Possession has been in the mortgagees from 1876 when the mortgage was executed but the agreement (Exhibit 163) was not perfected in a registered conveyance. The question of law on these facts is what share of the property, if 1927 any, the appellant is entitled to redeem.
5. It has been well settled law in this Presidency that a co-sharer entitled to alienate his own share of the joint family property : Mayne's Hindu Law, 9th Edition, para. 360. The observations in the case of Chet Ram v. Ram Singh . however applicable to the facts of that particular case and to the law obtaining in the United Provinces where unlike Bombay and Madras a coparcener has no such power, are hardly applicable to the facts of the present case. On the contrary, the right to alienate his share in a co-sharer and the validity to the extent of that share of an alienation by him of the whole have been affirmed in cases such as Pandurang Narayan v. Bhagwandas Atmaramshet I.L.R (1919) Bom. 341, s. c. 22 Bom. L.R. 120. Similarly, the doctrine of part performance, accepted by the Full Bench of this Court in Bapu Apaji v. Katshinath Sadoba I.L.R(1916) Bom. 438, s. c. 19 Bom. L.R. 100.f.b. has been approved of by their Lordships of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli , and has now been accepted by all the Courts in India: Vizagapatam Sugar Co. v. Muthuramareddi I.L.R (1923) Mad. 919, f. b. It follows, therefore, that possession coupled with the agreement to sell will ordinarily be a good defence in respect of the two-thirds share of the vendors. It is not necessary that the agreement at the time of defence should be capable of specific performance; it may even be barred; Laxman v. Ravji : AIR1924Bom150 . And possession need not be given only at the time of the agreement but need only be retained if it already exists : Venkatesh Damodar v. Mallappa Bhimappa I.L.R (1921) Bom. 722, s. c. 24 Bom. L.R. 242. Illustration (2) to Clause (c) of Section 27 of the Specific Relief Act applies to co-parceners in a joint Hindu family: Bhagwan v. Krishnaji : (1920)22BOMLR997 . In the present case, however, it does not appear that the appellant made inquiry of the respondents as to the nature of their possession to enable them to inform him of the agreement. The equities are, therefore, in the respondents' favour: Vinayaicrao v. Gyawoba : (1921)23BOMLR1062 . We, therefore, agree with the lower Courts that in respect of a two thirds share of the two brothers of Krishtappa who passed the agreement, the appellant's suit for redemption fails but it succeeds only in respect of the remaining one-third share appertaining to Krishtappa to which his daughters succeeded and which they conveyed to the appellant.
6. In regard to improvements, Section 51 of the Transfer of Property. Act does not appear to have been relied upon in the lower Courts. But in any case the respondents must be taken to have had notice of the existence of Krishtappa, so that they could not be said to have believed in good faith that they were entitled to the whole. The amount spent on improvements is five times the mortgage amount. Following, therefore, the decision of this Court in cases such as Nijalingappa v. chanbasawa I.L.R (1918) Bom. 69, s. c. 20 Bom. L.R. 895, and Dnyanu, Laxuman v. Fakira I.L.R(1921) Bom. 1301, s. c. 23 Bom. L.R. 567, we are of opinion that the respondents' claim as to improvements and the cross-objections in their regard also fail.
7. The appeal and the cross-objections are dismissed with costs.