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Siddeshwar Martand Hagre Vs. Ganpatro Bhaurao Patil and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in96Ind.Cas.361
AppellantSiddeshwar Martand Hagre
RespondentGanpatro Bhaurao Patil and ors.
Excerpt:
mortgage - redemption--co-mortgagor, whether can redeem entire property--right of other mortgagors barred, effect of. - - 2. the appellate judge allowed the plaintiffs to get possession of that survey number as well, following the decision in martand v......was omitted from the order because, in execution of a money decree against the mortgagors, their equity of redemption in that property was sold.2. the appellate judge allowed the plaintiffs to get possession of that survey number as well, following the decision in martand v. dhondo 624 ind. dec. 998.3. defendant no. 1 has appealed, and the respondents' pleader rightly admitted that the decision in khiarajmal v. daim 7 bom. l.r. 1 : 2 a.l.j. 71 : 1 c.l.j. 584 : 8 sar. p.c.j. 734 governs the case, and the case of martand v. dhondo 22 b 624 cannot now be considered as an authority, as was pointed out in govindrao v. waman s.a. no. 474 of 1909 in this court.4. the appellant, however, contended that the plaintiffs were not entitled to redeem more than their share of the mortgaged property,.....
Judgment:

1. This was a redemption suit filed by the plaintiffs, . and after a somewhat varied career the suit was decided by the Subordinate Judge who directed the plaintiffs to recover possession of the property in suit, except Part. No. 86, Survey No. 79, without paying anything to defendant No. 1. That one land referred to was omitted from the order because, in execution of a money decree against the mortgagors, their equity of redemption in that property was sold.

2. The Appellate Judge allowed the plaintiffs to get possession of that Survey Number as well, following the decision in Martand v. Dhondo 624 Ind. Dec. 998.

3. Defendant No. 1 has appealed, and the respondents' Pleader rightly admitted that the decision in Khiarajmal v. Daim 7 Bom. L.R. 1 : 2 A.L.J. 71 : 1 C.L.J. 584 : 8 Sar. P.C.J. 734 governs the case, and the case of Martand v. Dhondo 22 B 624 cannot now be considered as an authority, as was pointed out in Govindrao v. Waman S.A. No. 474 of 1909 in this Court.

4. The appellant, however, contended that the plaintiffs were not entitled to redeem more than their share of the mortgaged property, because there were other mortgagors who could not join in a redemption suit owing to the bar of limitation.

5. Now the ordinary principle is that one tenant in common as mortgagor can redeem the whole property. No reason has been shown in this case why the ordinary rule should not be followed beyond this, that the mortgagee had become entitled by purchase to the equity of redemption in one property mortgaged. There has been no severance of the equity of redemption according to the shares of the mortgagors, which could possibly justify the Court in holding that the plaintiffs had lost their right to redeem.

6. In that respect the appeal fails. But the appeal will be allowed to this extent that the plaintiffs cannot get possession of Part No. 86, Survey No. 79. No order as to costs.


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