1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL JURISDICTION
SECOND APPEAL NO.213 OF 1986
Shankarlal Nathumal Chandak,
deceased by his heirs
(1) Rajibai Shankarlal Chandak
(2) Laxminarayan Shankarlal Chandak;
(2A) Kanchanbai Laxminarayan Chandak
dismissed as against respondent no.2A
vide Additional Registrar's order
dated 26th February, 1988;
(2B) Rajibai Shankarlal Chandak
Dismissed as against appellant
no.2-B vide Court's order dated 13.1.05
(2C) Shivnarayan Laxminarayan Chandak;
(2D) Puspa Laxminarayan Chandak ;
(2E) Chandrakala Laxminarayan Chandak;
(2F) Bindu Laxminarayan Chandak, minor
by guardian Kanchanbai Laxminarayan Chandak;
(2G) Sushama Laxminarayan Chandak;
minor through guardian Kanchanbai
Laxminarayan Chandak;
(2H) Shrikant Laxminarayn Chandak;
minor through guardian Kanchanbai;
Laxminarayan Chandak;
(3) Badrinarayan Shankarlal Chandak;
(4) Ramnarayan Shankarlal Chandak;
(5) Madanlal Shankarlal Chandak;
...Appellants.
(Heirs of Org. Deft.No.22)
v.
(1) Balkrishna Jagannath Gujarathi;
(2) Bansilal Eknath Gujarathi, since deceased
by his heirs:
(2A) Indirabai Bansilal Gujarathi;
Name deleted vide Addl. Registrar's order
dated 29.1.1988
(2B) Ajit Bansilal Gujarathi
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Dismissed vide order dated 7.3.2006
(2C) Dilip alias Ranu Bansilal Gujarathi;
(3) Damodar Trimbak Gujarathi;
Since deceased through heirs
3A) Padmakar Damodhar Gujarathi
Age-Adult
3B) Mrs. Vidhya Gujarathi
Age-Adult
Both residing a Kopargaon, Dist. Ahmednagar.
(4) Prabhakar Trimbak Gujarathi;
Since deceased by his heirs
(4A) Baba alias Narendra Prabhakar Gujarathi;
(4B) Vilas Prabhakar Gujarathi;
(4C) Nalini Chandrakant Gujarathi;
Dismissed as against R.Nos.4-A to 4-C vide
order dated 26.2.1988.
(4D) Pushpabai Prabhakar Gujarathi;
(dismissed as against Respondent
No.4D vide Additional Registrar's
order dated 26th February, 1988);
(5) Murlidhar Trimbak Gujarathi;
Dismissed as per order dated 18.9.1987
(6) Gopal Trimbak Gujarathi;
(7) Bhalchandra Trimbak Gujarathi;
Dismissed vide order dated 26.2.88
(8) Rangaldas Deochand;
(9) Virchand Balkrishna Patni (Since
deceased by his heirs):
(9A) Shantilal Virchand Patni
(9B) Pravinkumar Virchand Patni, Adult
(9C) Subhash Virchand Patni,
dismissed as against Respondent Nos.9A to 9C
vide Additional Registrar's order dated
29th January, 1988;
(10)Shantilal Virchand Patni;
(11)Pravinlal Virchand Patni;
(12)Subhash Virchand Patni;
(13) Sumatilal Bhagchand Patni
Since deceased by his heirs
(13A) Ashok Sumatilal Patni
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(13B) Vinod Sumatilal Patni
dismissed as against Respondent Nos
13A and 13B vide Additional Registrar's
order dated 7/8/1987.
(13C) Ashalata alias Babulal Manilal Rajurkar
dismissed vide Addl. Registrar's order
dated 18.9.87
(14)Babulal Bhagchand Patni;
(15)Basantilal Bhagchand Patni;
dismissed vide Addl. Registrar's order
dated 18.9.87
(16) Sukrilal Bhagchand Patni,
Dismissed vide order dated 18.9.87
(17) Ishwarlal Bhagchand Patni
Dismissed vide Addl. Registrar's Order
dated 18.9.1987
(17A) Kantilal Virchand Patni;
(18) Shamchand Kavalchand, firm of Telegaon
since dissolved:
(19) Pannalal Harakchand Gujar, sinced deceased
by his heirs
(19A) Nishikant Pannalal Gujar;
(19B) Prashant Pannalal Gujar;
(19C) Vijay Pannalal Gujar;
(19D) Rajesh Pannalal Gujar;
(19E) Ranjana Pannalal Gujar;
(19F) Sarita Pannalal Gujar;
(19G) Sulabha Pannalal Gujar;
(19H) Kantabai Pannalal Gujar;
(19I) Suvarna Prakash Rai;
(20)Kantilal Balchand Gujar;
(21) Bhogilal Balchand Gujar
(22) Shantilal Balchand Gujar
Dismissed vide Addl. Registrar's order
dated 18.9.1987 against Respondent
nos.21 and 22.
(23)Arvind Govardhan Gujarathi;
(24)Narayan Damodhar Gujarathi;
(25)Vishwanath Sitaram Bhambare;
(26) Dhondiram Limbaji Sadawarte, since
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deceased by his heirs:
(26A) Kamalabai Dhondiram Sadavarte;
(26A) Kamalabai Dhondiram Sadavarte;
(26C) Dynaneshwar Dhondiram Sadavarte;
(26D) Prabhakar Dhondiram Sadavarte;
(26E) Nandu Dhondiram Sadavarte;
dismissed as against respondent no.26E
vide Addl. Registrar's order dated 18.9.1987.
(26F) Devanand Dhondiram Sadavarte
(26G) Rajabhau Dhondiram Sadavarte
(26H) Subhadra Shantaram Lachake;
Dismissed as against respondent nos.26G
and 26H vide order dated 19.2.88.
(26I) Chameli Ishwarlal Avasarkar
(26J) Kalavati Ashokrao Jadhav
Dismissed as against Respondent Nos.26I and 26J
vide order dated 27.11.87.
(27) Vasanta Nimbaji Sadavarte,
dismissed vide Addl. Registrar' order
dated 18th September, 1987.
(28) Waman Ranganath Patodkar
Dismissed vide Addl. Registrar's order
dated 18th September, 1987.
(28A) Balkrishna Waman Patodkar;
(28B) Ratnakar Waman Patodkar;
(28C) Anil Waman Patodkar
(28D) Paravatabai Waman Patodkar;
Dismissed vide Addl. Registrar's order
dated 18.9.87
(28E) Prabhavati Sumanlal Gujarathi;
Dismissed vide Addl. Registrar's order
dated 28.9.1987
(28F) Malatibai Purushottam Gujarathi;
(28G) Joti Kantilal Shaha,
Dismissed vide Addl. Registrar's order
dated 19.2.88
(28H) Shashikala Bipinbhai Shaha,
Dismissed vide Addl. Registrar's Order
dated 19.2.88.
(28I) Babay Babubhai Kashinath Gujarathi;
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(29) Kalika Devi Kasar Panchas Institute
of Yeola, Dist: Nashik;
(30) Malatibai Laxmanrao Shrimali,
Dismissed vide Addl.Registrar's order
dated8.4.88 ...Respondents.
WITH
SECOND APPEAL NO.214 OF 1986
1 Bhaulal Kanhyalal Halwai
2 Hiralal Kanhyalal Halwai
3 Maniklal Kanhyalal Halwai
4 Javaharlal Kanhyalal Halwai
5 Ramnarayan Kanhyalal Halwai
6 Baburao Ganpatrao Khandare deceased by
his heirs Appellant Nos.7 and 8
7 Vasant Baburao Khandare
8 Madhavrao Baburao Khandare
9 Adbul Razak Abdulla Kachi
10 Mohmed Sidik Abdulla
11 Abdul Satar Abdulla
12 Abdul Gafar Abdulla Kachi
13 Mohmed Iqubal Abdulla Kachi
14 Fandulal Manulal Halwai
vs.
1 Balkrishna Jagannath Gujarathi
2 Bansilal Eknath Gujarathi deceased
by his heirs
A Indirabai Bansilal Gujarathi;
B Ajit Bansilal Gujarathi;
C Dilip @ Ranu Bansilal Gujarathi
Dismissed for non-prosecution against
R.No.2A vide Addl. R's order dated 7.8.87
3 Damodar Trimbak Gujarathi
Second Appeal stands dismissed as against
R.No.3 vide Court's order dated 17.11.06 in
C.A.No.5770/93.
4 Prabhakar Trimbak Gujarathi
Deceased by his heirs
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A Aba @ Narendra Prabhakar Gujarathi;
B Vilas Prabhakar Gujarathi;
C Sau. Nalini Chandrakant Gujarathi;
D Sau. Pushpabai Prabhakar Gujarathi;
Dismissed for non-prosecution against
R.No.4A vide Addl. Registrar's order
7.8.87.
Dismissed for non-prosecution against R
No.4D vide Addl. R's order dated 7.8.87.
5 Murlidhar Trimbak Gujarathi
6 Gopal Trimbak Gujarathi
7 Bhalchandra Trimbak Gujarathi
8 Rangildas Devichand Firm of Yeola
9 Virchand Balchand Patni
10 Shantilal Virchand Patni
11 Pravinlal Virchand Patni
12 Subhash Virchand Patni
13 Kantilal Virchand Patni
14 Sumatilal Bhagchand Patni
15 Babulal Bhagchand Patni
16 Basantilal Bhagchand Patni
17 Surkilal Bhagchand Patni
18 Ishwarlal Bhagchand Patni
19 Shamchand Kevalchand
20 Pannalal Harakchand Gujar
deceased by his heirs
A Nishikant Pannalal Gujar
B Prashant Pannalal Gujar
C Vijay Pannalal Gujar
D Rajesh Pannalal Gujar
E Ranjana Pannalal Gujar
F. Suvarna Prakash Ray
G Sarita Pannalal Gujar
H Sulabha Pannalal Gujar
I Shantabai Pannalal Gujar
21 Kantilal Balchand Gujar
22 Mangilal Balchand Gujar
deceased by his heirs
A Raykumar Bhogilal Gujar
B Santkumar Bhogilal Gujar
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C Ramanlal Bhogilal Gujar
D Sevantilal Bhogilal Gujar
deceased by his heirs
D1 Rekhabai Shevantilal Gujar
D2. Vivek Shevantilal Gujar
D3 Parag Shevantilal Gujar
D4 Nayana Shevantilal Gujar
23 Shantilal Balchand Gujar
24 Bansilal Fandulal Halwai
25 Ratanlal Fandulal Halwai
26 Babanlal Fandulal Halwai
27 Jagdish Dwarkanath Gujarathi
28 Jayshankar Bhikalal Upadhyay
deceased by his heirs
A Anusuyabai Jayshankar Upadhyay
B Madhuben Harshadrai Pandya
29 Ambalal Mangaldas Upadhyay,
deceased by his heirs
A Tarabai Ambalal Updhyay
B Mahendrakumar Ambalal Upadhyay
C Chittaranjan Ambalal Upadhyay
30 Purshottam Lochardas Upadhye
31 Kankalben Ranchoddas Upadhye
32 Shantabai Upadhye
33 Santoshben Upadhye
34 Hiralal Prabhudas Company; Yeola
35 Waman Rangnath Patodkar
36 Madhav Lahanu Sonar; deceased
by his heirs
A Smt. Bhagirathibai Madhav Sonar
B Smt. Krishnabai Madhav Sonar
C Jagannath Madhav Sonar
D Dnyaneshwar Madhav Sonar
E Sau. Laxmibai Sudhakar Sonar
F Sou. Zumbarlal Gopinath Sonar
G Sou. Manda Krishnashet Sonar
H Sou. Pushpa Shivdasshet Sonar
I Nandu Madhavshet Sonar
37 Shankar Tulshiram Khairnar
38 Mahadu Sukhan Pardeshi
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39 Ahmed Alli Abdulla Karim Kachi
40 Sou. Kamalbai @ Manoramabai Maniklal
Shah
41 Sou. Malutai Laxmanrao Shrimali
42 Vimalkumar Damodar Patni
43 Babulal Sakarchand Patni
44 Kisanlal Khandulal Halwai ...Respondents.
WITH
SECOND APPEAL NO.220 OF 1986
Vishwanath Sitaram Bhambere ..Appellant.
vs.
1 Balkrishna Jagannath Gujarathi
2 Indirabai Bansilal Gujarathi;
3 Ajit Bansilal Gujarathi;
4 Dilip @ Ram Bansilal Gujarathi
5 Damodar Trimbak Gujarathi
6 Prabhakar Trimbak Gujarathi
6A Sau. Nalini Chandrakant Gujarathi;
6B Vilas Prabhakar Gujarathi;
6C Narendra Prabhakar Gujarathi;
6DSau. Pushpabai Prabhakar Gujarathi;
6D(i) Baba Prabhakar Gujarathi;
6D(ii) Vilas Prabhakar Gujarathi;
6D(iii) Nalini Chandrakant Gujarathi;
7 Murlidhar Trimbak Gujarathi
8 Gopal Trimbak Gujarathi
9 Bhalchandra Trimbak Gujarathi
10 Malatibai Laxmanrao Shrimali; } Names of R.Nos.10 to 12 are
11 Kamalabai Manoramabai Maniklal; } deleted as per Court's order
12 Rangildas Devchand Patni } dated 16.7.87 passed in
C.A.No.3439/87.
13 Virchand Balchand Patni }
13A Shantilal Virchand Patni }
13B Pravinlal Virchand Patni }
13C Subhash Virchand Patni }
14 Ashok Sumatilal Patni }
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15 Vinod Sumatilal Patni }
16 Ashalata Babulal Manilal; }
17 Babulal Bhagchand Patni
18 Bansilal Bhagchand Patni }
19 Sukrilal Bhagchand Patni }
20 Ishwarlal Bhagchand Patni }
21 Kantilal Virchand Patni }
22 Shamchand Kevalchand }
23 Pannalal Karamchand Gujar }
23A Nishikant Pannalal Gujar }
23B Prashant Pannalal Gujar }
24 Kantilal Balchand Gujar }
25 Bhagchand Balchand Gujar }
26 Shantilal Balchand Gujar
ig }
27 Arvind Govardhan Gujarathi }
28Narayan Damodar Gujarathi; }
29 Dhondiram Limbaji Sadawarte }
29A Kamalabai Dhondiram Sadavarte; }
29B Brahmadeo Dhondiram Sadavarte; }
29C Dynaneshwar Dhondiram Sadavarte;}
29D Prabhakar Dhondiram Sadavarte; }
29E Nandu Dhondiram Sadavarte; }
29F Devanand Dhondiram Sadavarte }
29G Rajabhau Dhondiram Sadavarte }
29H Subhadra Shantaram Lachake; }
29I Chameli Ishwarlal Avaskar }
29J Kalavati Ashokrao Jadhav }
30 Vasant Limbaji Sadavarte, }
31 Waman Ranganath Patodkar }
31A Balkrishna Waman Patodkar; }
31B Ratnakar Waman Patodkar; }
31C Anil Waman Patodkar }
31D Parwatibai Waman Patodkar; }
31E Prabhavati Sumanlal Gujarathi; }
31F Malatibai Purushottam Gujarathi; }
31G Jyoti Kantilal Shah, }
31H Shashikala Binbhai Shah, }
31I Baby Babubhai Kashinath Gujarathi; }
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32 Shankarlal Nathulal Chandak }
33 Kalikadevi Kesar Panch }
33A Rajubhai Shankarlal Chandak }
33B Badrinarayan Shankarlal Chandak; }
33C Ramnarayan Shankarlal Chandak }
33D Laxminarayan Shankarlal Chandak }
33D(i) Kanchanbai Laxminarayan Chandak }
33D(ii) Shivnarayan Laxminarayan Chandak }
33D(iii) Pushpa Laxminarayan Chandak }
33D(iv) Chandrakanta Laxminarayan Chandak }
33D(v) Shrikant Laxminarayan Chandak }
33D(vi) Bindu Laxminarayan Chandak }
33D(vii) Sushama Laxminarayan Chandak }
33D(viii) Madanlal Shankarlal Chandak } ...Respondents.
Respondent Nos. 13A to 16 and 18 to 33
D( viii) are deleted vide Addl. R's order
dated 27.1.89 passed on office submission
Mr.P.D.Pise i/by Ms.A.R.S.Baxi, advs. for the Appellant.
Shri Prasad Kulkarni i/by P.S.Dani, advs. for the appellants in S.A.Nos.
213/86 and 214/86.
Mr.Prafulla B. Shah i/by Shri S.D.Kulkarni, advs. For the Respondent
Nos.1,3,4,5,8 and 9.
CORAM : J.H. BHATIA, J.
DATED : 20th August , 2009
ORAL JUDGMENT:
1 All these three appeals arise out of the common judgment in
the appeals filed by the defendants. Though original suits were different,
all the three appeals were admitted by one word order “Admit” and no
questions of law were formulated at the time of admission. After hearing
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the learned counsel for the parties and perusal of the impugned
judgment, the following substantial questions of law arise in the present
appeals:
“1 Whether the suits for redemption of mortgage
executed in 1880 were barred by limitation ?
2 Whether the Transfer of Property Act, 1882
has no application to the mortgage executed in
1880 and as a result, suit for redemption of
mortgage itself is not tenable in law ?
2 Heard the learned counsel for the parties. Perused the
impugned judgments and the relevant documents. Facts of each of the
appeals may be briefly stated.
SECOND APPEAL NO.220 OF 1986
3 Property involved in this appeal is City Survey Nos.1147
and 1148 (Old No.3294) situated at Nashik. This property was originally
owned by one Bhausa Chimansa, who was owner of the big property. He
executed mortgage deed in respect of suit property in favour of the
Rangildas Devchand firm on 25.10.1880. As per the mortgage deed,
mortgagor could redeem the mortgage on expiry of four years. However,
right of redemption was not used by the original owners or his legal heirs
. On 13.3.1924 defendant no.1 Rangildas Devchand, i.e., the original
mortgagee executed assignment deed in respect of suit property in
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favour of one Deubai Rangu Pansare and put her in possession of the suit
property. Property was open land. Deubai made construction of the house
on the said property. On 18.8.1945 Deubai executed a registered sale
deed cum assignment deed in favour of the defendant no.18 Vishwanath
Bhambere, who is appellant in this appeal and put him in possession of
the said suit property. Respondent nos.1 to 10 , who are the legal heirs of
the original owner and mortgagor, filed regular civil suit no.170 of 1968
before the Civil Judge Junior Division, Yeola for redemption of mortgage
and possession of the mortgage property against the present appellants
and other defendants. According to the appellant, suit is barred by the
limitation. Deubai had purchased open site and after construction ,
constructed premises were sold to the present appellants and, therefore,
no mortgage is subsisting. He also claimed that Transfer of Property Act,
1882 was not applicable and in case, redemption is granted, he is entitled
to refund of Rs.3,750/- which was spent by him for repairs and
maintenance of the house. The trial Court rejected the contentions of the
defendant and passed the judgment and decree dated 31.10.1973. The
present appellant preferred regular civil appeal no.42 of 1974 before the
District Judge, Nashik. That appeal came to be dismissed on 31.10.1985.
Hence, the second appeal.
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SECOND APPEAL NO.213 OF 1986
4 In this appeal suit property is house no.3291 (Old No.1146).
That suit house alongwith some other properties including nos.4151 and
3294 were mortgaged by Bhausa Chimansa in favour of the defendant
no.1 Rangildas Devchand firm under a mortgage deed dated 25.10.1980.
Defendant nos.2 to 10 and 10A are the partners or the owners of that
firm. The defendant no.1 transferred the mortgage rights of house no.
3291 in favour of the defendant no.11, of which defendant nos.12 to 15
are the partners or owners, under assignment deed of 29.11.1927.
Defendant no.11 firm assigned their mortgage rights in favour of the
defendant no.21 in 1929. Defendant no.21 assigned his mortgage rights
to defendant nos.19 and 20 through a assignment deed Exhibit 88 dated
9.8.1947. Finally defendant nos.19 and 20 assigned their mortgage rights
to the defendant no.22, ie., the present appellant in respect of house no.
3291 under assignment deed dated 11.4.1959 Exhibit 89 and thus,
defendant no.22, who is the present appellant, is in possession of the said
house since 1959. Plaintiffs, who are the legal heirs of the original
owners by filing regular civil suit no.170 of 1968 claimed redemption of
three houses including house no.3291. Suit was decreed and the
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appellant filed Civil Appeal No.53 of 1974. The appeal was dismissed.
Hence, this Second Appeal.
SECOND APPEAL NO.214 OF 1986
5 In this appeal, four properties are involved , they are house
no.1062, house no.867, house no.937 and house no.933. These properties
and some other properties were mortgaged by Bhausa Chimansa in
favour of Rangildas Devchand a firm under three mortgage deeds dated
13th September, 1879. Bhausa Chimansa created further mortgage in
favour of Rangildas Devchand a firm in respect of these properties on
25th October, 1990 by securing further amount of Rs.1500/-. Defendant
no.1 Rangildas Devchand a firm had assigned their mortgage rights in
favour of the defendant no.12 under the assignment deed dated 29th
November, 1927. Defendant no.12 firm assigned its rights in property no.
937 in favour of the defendant no.1 Abdul Alli Mohmed Kachi. The
appellant nos.9 to 13 in the present appeal, who were the defendant nos.
41 to 45 in Regular Civil Suit No.171 of 1968 are the legal heirs of said
Abdul. The mortgage rights in house no.867 were assigned in favour of
the original defendant no.40 who in turn assigned rights to one Namdeo
Bhima Mandwada. Said Namdev assigned his rights on 10th July, 1940 in
favour of the original defendant no.39 and the defendant no.39
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transferred the said rights in favour of the defendant no.35 on 30th
August, 1946. The defendant nos.36 and 37 are sons of the defendant no.
35. Defendant nos.35 to 37 are the appellant nos.6,7 and 8 in the present
appeal. Rights of the house no.933 were assigned on 20th April, 1932 in
favour of the defendant no.38 by defendant no.12 and defendant no.38
transferred the said rights to defendant no.51 under assignment deed
dated 13th October, 1942. The appellant no.14 in the present appeal is
defendant no.51. Rights in the house no.1062 (Part) were assigned in
favour of Bandulal Bhagwandas on 17th August, 1931. Defendant nos.17
to 25 are the heirs of said Bandulal. The appellant nos.1 to 5 are the
original defendant nos.21 to 25.
6 About the above referred house no.867, 937, 933 and 1062
alongwith some other properties, the legal heirs of the original owners
Bhausa Chimansa filed regular civil suit no.171 of 1968 for redemption
of mortgage. Decree passed in their favour was challenged in civil appeal
no.57 of 1984 by the present appellants. That appeal was also dismissed.
7 On hearing the learned counsel for the parties and perusal of
the record, there appears no dispute about the original ownership and the
different transactions beginning with 1880 onwards. Firstly, we have to
see what is the effect of enactment of Transfer of Property Act, 1882. In
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fact settled principle of law is that once a mortgage always a mortgage
and mortgagor could redeem the property anytime. No written law was
there in respect of mortgage of the property prior to 1882 . It was only
codified in chapter IV of the Transfer of Property Act, 1882. No basic
change has been made in the law but only some terms, rights and
liabilities of the mortgagor and mortgagee or the assignees have been
specifically provided. Even though this Act would not have been enacted
or would not have been made applicable to the previous transactions,
mortgagor would always be entitled to redeem the mortgage by making
the payment of mortgage money.
8 As far as House Nos.3294, i.e., City Survey Nos.1147 and
1148, suit property in the second appeal no.220 of 1986 is concerned,
this was mortgaged alongwith two other properties by the original owner
Bhausa Chimansa in favour of defendant no.1 Rangildas Devchand firm
under the registered mortgage deed dated 25.10.1880 Exhibit 84. The
terms of the mortgage are specified therein. Mortgage money was to
carry interest at the rate of 8% p.a. Mortgagee was entitled to recover the
rent and profits of the property. Amount of the rent or other properties
was to be adjusted against the interest to be deposited by the mortgagor
from time to time. As per the agreement, mortgage could be redeemed on
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expiry of four years from the date of mortgage deed. As far as Appeal
No.213 of 1986 is concerned, it is pertaining to house no.3291, which
was also part of same mortgage deed. It appears that in 1924 defendant
no.1, Rangildas Devchand assigned the rights in respect of house no.
3294 in favour of Deubai under the registered deed dated 13.3.1924 and
then Deubai executed the registered sale deed cum assignment deed
dated 18.8.1945 vide Exhibit 87 in favour of the defendant no.18, i.e., the
appellant Vishwanath in Second Appeal No.220 of 1986. That mortgage
deed clearly shows that the rights as a mortgagee on the land were
assigned by Deubai in favour of the appellant while structure thereon
was sold by her to the appellant. Thus, the appellant got the property as
a mortgagee of the land and as a owner of the structure thereon. He never
purchased the land under the deed dated 18.8.1945 Exhibit 87. In respect
of appeal no.213 of 1986 also, it appears that under every document of
assignment, the rights of the mortgagee were transferred from one person
to another and the some right is now held by the appellant, who was
original defendant no.22.
9 The learned trial Court rightly pointed out that under the
Limitation Act, 1908, period of limitation for the purpose of redemption
of mortgage was 60 years, however, that period has been reduced to 30
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years now under the Article 61 of the Limitation Act, 1963. As the
original date of mortgage was four years, date of limitation for the
purpose of redemption would begin to run from 25.10.1884 and this
period would expire on 25.10.1944. However, as per the assignment deed
dated 13.10.1924 in one appeal and dated 29.11.1927 in another appeal,
by executing assignment deeds, the then mortgagees and their assignees
acknowledged the existence of mortgage in favour of the original
owners and they admitted that they were still mortgagees. Thus, before
the expiry of period of limitation, they made acknowledgment of the
right of the mortgagors and, therefore, period of limitation would begin
to run in 1924 or 1927. As under the Limitation Act 1908, period of
limitation was 60 years, this period was to come to an end on 1984. Suits
were filed on 14th August, 1968. Under Section 30 of the Limitation Act,
1963, it is provided that any suit, for which the period of limitation is
shorter than the period prescribed by the Limitation Act, 1908, may be
instituted within a period of 7 years next after the commencement of the
Act of 1963 or within the period prescribed for such suits by the
Limitation Act, 1908, whichever period expires earlier. It may be noted
that initially period was five years. Suit to be filed within five years but
by the amendment of 1969, this period was enhanced by seven years.
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Anyhow, as per the provisions of Section 30, at the time of filing the
suit in 1968, suit could be filed within five years from the date of
implementation of the Limitation Act, 1963. The Act came into force on
1.1.1964. Therefore, suit for redemption of mortgage could be filed on
or before 1.1.1969. Present suit was filed during the year 1968, therefore,
it was within limitation.
10 In view of the facts in appeal no.214/1986 it is clear that
initially Bhausa Chimansa had mortgaged his rights on the properties in
favour of Rangildas Devchand a firm on 13th September, 1879 and he
created further mortgage in respect of the properties on 25th October,
1900. Thereafter these rights were assigned firstly, in 1927 then in 1931,
1932 and 1942. Undisputedly in every assignment deed only the rights of
the mortgage deed were assigned by one person to another and thereby
there was acknowledgment of existence of title of the original mortgagor
in all these properties.
11 It is material to note that under Section 18 of the Limitation
Act, 1963 where before the expiry of prescribed period for a suit or
application in respect of any property or rights, a acknowledgment in
respect of any such property or right has been made in writing signed
by the party against whom such property or right is claimed or by any
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20
person through whom he derives his title or liability, a fresh period of
limitation shall be computed from the time when the acknowledgment is
so signed. Similar provision was made under Section 19 of the
Limitation Act, 1908. Therefore, period of limitation would begin to run
as and when there was fresh assignment acknowledging existence of the
mortgage. In the present case, first such document dated 13.10.1924 in
the form of assignment deed executed by the defendant no.1 Rangildas
Devchand firm in favour of the Deubai and then in 1927 therefore, fresh
period of limitation would begin in 1924 or 1927.
12 Taking into consideration the legal position and the facts, I
find no mistake in the decree passed by the trial Court and confirmed by
the Appellate Court.
13 The learned counsel for the appellant in Appeal No.220 of
1986 contends that the Courts below have refused to refund the amount
to him for the repairs and also they have not stated anything about his
right over the structure. As far as refund of amount is considered , there
is no fault because open land was mortgaged on which structure was
raised by Deubai and from time to time present appellant was required to
spend some money for repair and maintenance of that structure. There is
no dispute that structure is owned by the present appellant while the land
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21
belongs to the plaintiffs. Plaintiffs will naturally get the decree for
redemption of mortgage in respect of land beneath that structure. At the
time of execution of the decree, the present appellant being owner of the
structure may, if he so desires, remove and take away material of the
structure. In fact, this clarification is not at all required because that is the
settled position of law. Thus, on this count also the learned counsel could
not point out any fault in the decision of the Courts below.
14 For the aforesaid reasons, appeals stand dismissed.
15
As the Appeals are disposed off, Civil Application Nos.
1106 of 1986, and Civil Application No.555 of 1989 do not survive and
stand disposed off accordingly.
(J.H. BHATIA,J.)
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