JAYASINGH DNYANU MHOPREKAR Vs. KRISHNA BABAJI PATIL

JUDGEMENT

(1.) This appeal by special leave arises out of a suit for redemption. Krishna Babaji Patil (Plaintiff No. 1) and his brother Bandu Babaji Patil were holding a half share in the lands bearing Survey Nos. 221/1, 222/2, 226/8 and 226/12 in a measuring 22 Acres and 13 Gunthas situated at Mouja Shirsi, Peta Shirola, District Sangli as permanent Mirasi tenants and were in actual possession of their share in the said lands. The lands in question were Paragana Watan Inam Lands and the Watandars belonged to the family of Kokrudkar Deshmukhs. On May 20, 1947 Krishna Babaji Patil (Plaintiff No. 1) and Bandu Babaji Patil executed a mortgage deed in favour of two persons by name Dnyanu_Krishna Mhoprekar and Ananda Santu Mhoprekar (Defendant No. 2) mortgaging their share in the above lands with possession by way of security for a loan of Rs. 1,000/- which they borrowed under the mortgage deed. The mortgage was for five years. The mortgagees were entitled to appropriate the income from the mortgaged property towards interest. Dnyanu Krishna Mhoprekar, one of the mortgagees, died in or about the year 1953 leaving behind him, Jaysingh Dnyanu Mhoprekar (Defendant No. 1) as his heir and the 'Karta' of his joint family. Bandu Babaji Patil, one of the mortgagors, referred to above, died in the year 1955 leaving behind him his son plaintiff No. 2 and two other sons as his heirs. Plaintiff No. 2 is the 'Karta' of that branch of the family.

(2.) The remaining one-half share in the lands comprised in the above Survey Numbers belonged to Ganu Vithu and Pandu Vithu who were members of the other branch of the family of the mortgagors. They had also mortgaged their share in favour of one Pandu Krishna who was no other than the brother of Dnynau and the father of Ananda Santu Mhoprekar (Defendant No. 2). Defendant No. 2 had, however, been given in adoption to Santu. Subsequently Ganu Vithu and Pandu Vithu sold their shares in favour of the mortgagee Pandu Krishna. Thus the family of the defendants was in possession of both the shares in the lands bearing Survey Nos. 221/1, 222/2, 226/8 and 226/12.

(3.) The plaintiffs instituted the suit for redemption in Regular Civil Suit No. 67 of 1965 on the file of the Civil Judge, Junior Division, Islampur out of which this appeal arises after an abortive attempt to redeem the mortgage in a proceeding under Section 83 of the Transfer of Property Act, 1882 in Misc. Application No. 44 of 1963. The suit was resisted by the defendants. In the written statement filed by the Defendant No. 1, it was pleaded inter alia that since after the abolition of the Watans the mortgaged lands had been granted in favour of Dnyanu (the father of defendant No. 1 Jayasing), Ananda (Defendant No. 2) and Pandu Krishna (brother of Dnyanu) by the Government after receiving the occupancy price amounting to Rs. 364.81 on February 5, 1964 the right of the mortgagors and / or their legal representatives to redeem the mortgage had become extinguished and that the grantees of the land had become absolute owners of the suit lands. After the trial, the suit was dismissed by the Civil Judge. Aggrieved by the decree of the Trial Court, the plaintiffs preferred an appeal against it before the District Court, Sangli in Civil Appeal No. 278 of 1966. In that appeal which was heard by the Assistant Judge, Sangli the decree of the Trial Court was reversed and a decree for redemption was passed. Under that decree the plaintiffs were directed to pay, in addition to the amount of Rs. 1,000/- borrowed under the mortgage deed a sum of Rs. 182.41 which was equivalent to one-half of the amount paid by defendant No. 1 and others in order to obtain the grant from the Government. Accordingly an appropriate preliminary decree was drawn up under Order XXXIV, Rule 7 of the Code of Civil Procedure. Aggrieved by the decree of the learned Assistant Judge, Sangli, the defendants filed a second appeal before the High Court of Bombay in S.A. No. 37 of 1969. The Second Appeal was dismissed on March 3, 1971 and the decree made by the first appellate Court was affirmed. This appeal by special leave is filed against the Judgment and decree of the High Court.