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Bombay High Court
Mahadaji Gopal Bakiekar vs Vithal Ballal And Ors. on 8 August, 1881
Equivalent citations: (1883) ILR 7 Bom 78
Author: K M.R. Westropp
Bench: M Westropp, Kt., Melvill


JUDGMENT

M.R. Westropp, Kt., C.J.

1. Trimbak Krishna Soni’s attachment was defeated in 1858 by the pretence that the defendants, Vithal and Gangadhar (who are undivided co-parceners), were holding the land as purchasers, and such was the capacity which certain of the exhibits represented those defendants to fill. Before 1862 the whole of the property had become vested in them ostensibly as purchasers; but exhibits 19 and 18, which are found to be genuine, show that their real position was that of mortgagees, and that in that capacity they had received two sums of Rs. 375 each, i.e. Rs. 750 in the aggregate. Assuming as above assumed, and as the Courts below have found, that the arbitration award, the decree founded thereon, and the sale to Bhikaji and transfer by Bhikaji to Vithal, were for the fraudulent purpose of shielding Gopal’s equity of redemption in the lands from the execution of Soni, yet it is impossible for any Court of Equity to allow the defendants to pose as purchasers or owners, when they have accepted repayment of Rs. 750 as mortgagees. Having done this, as is acknowledged by Vithal in exhibits 19 and 18, the former of which is dated in 1855, and the latter in 1862, and, having, on the faith of the latter document, been permitted by the plaintiff to remain in possession for ten years without disturbance as mortgagees, it is manifest that they are completely estopped from setting themselves up as purchasers or owners, in which false character alone it was that the fraudulent defeat of Soni’s execution was effected. The plaintiff is entitled to recover the whole of the thikans, the subject of this suit, as well as the khoti taksim decreed to him by the Courts below. The decree of the District Judge must be varied accordingly, and by awarding to the plaintiff mesne profits (to be ascertained in execution) from the 3rd July, 1876 (being the date of the presentation of the plaint), to the delivery of possession to the plaintiff. The parties, respectively, must bear their own costs of the suit, and the defendants, Vithal and Gangadhar, must pay to the plaintiff his costs of both appeals.


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