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Jadhav Gopal Vs. Samal Bechar and anr. - Court Judgment

LegalCrystal Citation
Subjectproperty ;limitation
CourtMumbai
Decided On
Reported inAIR1926Bom363
AppellantJadhav Gopal
RespondentSamal Bechar and anr.
Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - justice telang said that he was not entirely satisfied with the reasoning contained in that judgment, but he was not prepared to differ from his colleague......the equity of redemption from the descendants of the original mortgagor, filed a suit in 1887 to redeem the mortgage of 1816. it was held that the acknowledgment by jagjivandas, whether as manager of the firm or as one of the heirs of the original mortgagee, was not under article 148 of the indian limitation act ix of 1871. it was admitted by justice jardine that the case was one of first impression. there was no authority cited from the indian law reports, but the learned judge relied upon a decision of the chief court of the punjab. justice telang said that he was not entirely satisfied with the reasoning contained in that judgment, but he was not prepared to differ from his colleague.6. but we are now concerned with an entirely different state of facts to be considered with.....
Judgment:

Macleod, C.J.

1. The plaintiff, Jadhav Gopal, brought this suit for redemption against Samal Bechar, Defendant No. 1, and four other defendants with whom I. am not concerned in this appeal.

2. The plaintiff sued to redeem land measuring seven acres and nine gunthas originally mortgaged by one Jesang Umed in 1839 to Vithal Banchhod, the ancestor of the defendants. Vithal's family separated into two branches, one branch dealt with three acres and twenty gunthas of the mortgaged land and the other branch dealt with the remainder. Bechar sub-mortgaged three acres and twenty gunthas in 1878.to the present plaintiff's father. In 1922 plaintiff's father acquired the right to the equity of redemption of all the property. It is conceded that his claim to redeem the land now in possession of the defendants, other than Defendant No. 1, has become barred by limitation.

3. With regard to Defendant No. 1 it was contended that the mortgage of 1839 was kept alive by an acknowledgment made by the father of Defendant No. 1 by the sub-mortgage of 1878. The trial Court found that the plaintiff was entitled to redeem, and that on taking accounts nothing was due.

4. I should have mentioned that a companion suit was filed by Samal Bechar to redeem the sub-mortgage, in which it was found that nothing was due on the sub-mortgage, and, therefore, the present plaintiff as sub-mortgagee had been paid off. The sub-mortgage, therefore, goes out of the case.

5. The appellate Judge held that the acknowledgment relied upon by the plaintiff which was to be found in Ex. 17, the sub-mortgage of 1878, was not capable of keeping alive the right of redemption as against the portion in the possession of the mortgagee. He relied principally on the decision in Bhogilal v. Amritlal [1892] 17 Bom. 173. The facts in that case were entirely different. The acknowledgment relied, upon was given by one Jagjivandas, a managing partner in the firm of Kasandas, the original mortgagees under a mortgage of 1816. The acknowledgment was contained, as in this case, in a sub-mortgage to a third party. The plaintiff in the suit having purchased the equity of redemption from the descendants of the original mortgagor, filed a suit in 1887 to redeem the mortgage of 1816. It was held that the acknowledgment by Jagjivandas, whether as manager of the firm or as one of the heirs of the original mortgagee, was not under Article 148 of the Indian Limitation Act IX of 1871. It was admitted by Justice Jardine that the case was one of first impression. There was no authority cited from the Indian Law Reports, but the learned Judge relied upon a decision of the Chief Court of the Punjab. Justice Telang said that he was not entirely satisfied with the reasoning contained in that judgment, but he was not prepared to differ from his colleague.

6. But we are now concerned with an entirely different state of facts to be considered with reference to the Indian Limitation Act of 1908. It is true that the heirs of the original mortgagee split up the mortgage. But they cannot take advantage of that fact to defeat the rights of the mortgagor to redeem. In my opinion though the plaintiff, owing to the bar of limitation, could not redeem half the property from one branch, he was entitled still to claim to redeem on payment of what was due on the mortgage the remaining half in the possession of the first defendant, if his suit was within time. It is to the advantage of the first defendant that he is entitled to an account of the whole mortgage before he can be directed to hand over possession to the mortgagor. If there was no question of limitation, then undoubtedly the mortgagor would have to make all the parties interested in the mortgage parties to the redemption suit, and they would all be entitled to taka part in the hearing of the action.

7. The principle to be observed is that one of several mortgagees cannot restrict the rights of the mortgagor to redeem unless he can show that he has open in some way prejudiced. Now if cannot be said that the first defendant will in any way be prejudiced by the plaintiff mortgagor being allowed to redeem as he can only be allowed to redeem on paying the whole amount that may be due on taking the mortgage account. It makes no difference to the operation of the general principle that as a matter of fact in this case the mortgage has been paid off out of the profits.

8. In my opinion, therefore, the appeal succeeds and the decree of the trial Court must be restored with costs in this Court and in the Court below.


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