LILACHAND TULJARAM GUJAR Vs. MALLAPPA TUKARAM BORGAVI

JUDGEMENT

(1.) This appeal by special leave has arisen out of Original Suit No. 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shiddappa Borgavi alias Teli (since deceased) as his son Mallappa Tukaram Borgavi alias Teli (1st respondent herein) against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs. The mortgaged property consists of R. S. No. 307 which is Devasthan Inam lands burdened with the obligation to supply oil for Nand Deep, i.e., keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani. The said property originally belonged to two brothers Shiddappa and Annappa. The khata of the land, however, stood in the name of Shiddappa as the registered occupant under S. 74 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879).

(2.) The facts material for our present purpose may now be stated. On January 23, 1888, Shiddappa and Annappa executed a unufructuary mortgage (Ex. D-51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs. 1,300 made up of Rs. 1,100 due under a previous mortgage and Rs. 200 presently advanced in cash. That deed provided that the mortgage money would be repaid with a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said outgoings, the mortgagees would incur the said expenses and add the same to their claim on the mortgage. On March 10, 1900, Shiddappa alone executed a simple mortgage (Ex. D-52) for Rs. 600 in favour of the same mortgagees. A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them. This simple mortgage deed provided that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account. On March 22, 1900, before the simple mortgage deed was presented for registration, Shiddappa, who was the registered occupant, gave a Rajinama under S. 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the abovementioned khata of R. S. No. 307 from the end of the then current year. On the same day, the mortgagees by a Kabuliyat prayed that the occupancy in the mortgage property may be granted to them. Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 5, 1900. Siddappa haveing died, Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name. This application was rejected. In 1907 Shiddappa's sons Tukaram (the original first plantiff herein) and Annappa, the brother of Shiddappa filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists Relief Act. That suit having been dismissed, they appealed to the District Court, Belgaum, but that appeal was dismissed on March 15, 1909. Annappa again applied for the lands being put in his possession, but that application also was rejected on August 4, 1910. Thereafter, in 1911 Annappa and Tukaram, the brother and son respectively of Shiddappa, filed C. S. No. 362 of 1911 under the same Deccan Agriculturist's Relief Act for the same reliefs. That suit was also dismissed and the appeal therefrom met with a like fate on March 17, 1914. In 1922 Annappa died without any issue. The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities. On November, 1, 1937, Tukaram and his son Ganpat, alleging that they were the legal representatives of both Shiddappa and Annappa, filed Original Suit No. 586 of 1937, out of which this appeal arises, against the appellants Lilachand and his three sons for the redemption of the mortgages. In the written statement the defendants-appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees, the equity of redemption became extinguished and that as Siddappa alone was the registered occupant, the Rajinama given by him was valid and binding on Annappa. They further alleged that the plaintiffs were not the heirs of the deceased Annappa, for the latter had died after having transferred his interests in the mortgaged properties to others. It transpires that Annappa died in 1922 after having and published his last will and testament bequeathing his interest in the mortgaged properties to one Krishna Kallappa, that Krishna Kallappa applied for Letters of Administration in respect of Annappa's estate and that in spite of the opposition of Tukaram, Letters of Administration with a copy of the will annexed was granted to Krishna Kallppa. Krishna Kallappa having died, his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs.

(3.) The trial court held that the Rajinama executed by Shiddappa did not extinguished the title of the mortgagees in the mortgaged property, that the plaintiffs were agriculturists that they were bound to pay the amount also under the simple mortgages had that on taking amounts the mortgages had redeemed themselves. Accordingly the trial court passed a decree for possession declaring that both the mortgages had been satisfied. The mortgagees, defendants 1 to 4, appealed to the District Court, Belgaum, in Regular Civil Appeal No. 322 of 1940. The District Court held that by the Rajinama, Shiddappa intended to convey the title in the suit land to the mortgagees and hence Shiddappa's heirs, the plaintiffs 1 and 2, could not claim redemption of Shiddappa's one half share in the suit land. As regards Annappa's share, the learned Judge held that the Rajinama had not the effect of transferring the interest of Annappa to the mortgagees and that inasmuch as the mortgages were subsisting, the defendants could not acquire title by adverse possession. In this view he allowed the appeal in part with the result that the suit was dismissed so far as the claims of plaintiffs 1 and 2 were concerned but the claims of plaintiffs 3 to 6 as the legal representatives of Annappa were upheld and they were allowed to redeem Annappa's one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages. The mortgagee-defendants 1 to 4 appealed to the High Court in Second Appeal No. 754 of 1942 against that part of the decree which rejected their claim to Annappa's share and the plaintiffs 1 and 2 also filed Second Appeal No. 1011 of 1942 against the dismissal of their claim for redemption of one half share of Shiddappa in the mortgaged property. Both the appeals were disposed of by a common judgment by Weston J. The learned Judge held that, so far as Shiddappa's share was concerned, the Rajinama was a complete relinquishment of his interest but as regards Annappa's share, he agreed with the District Judge's conclusion that Shiddappa could not bind Annappa's share by the Rajinama and in this view of the matter he dismissed both the appeals. Against this decree both the parties preferred Letters Patent Appeals, namely, L. P. A. No. 22 of 1945 which was filed by defendants 1 to 4 and L. P. A. No. 16 of 1945 which was filed by plaintiffs 1 and 2. The Division Bench dismissed both the appeals. The present plaintiff No. 1, the son of Tukaram (the deceased son of Shiddappa who was the original plaintiff No. 1) has not come up to this Court and, therefore, the decision of the Division Bench has become final so far as he is concerned. The High Court having refused to grant leave to appeal to his Court, the mortgagee-defendants 1 to 4 applied to and obtained from this Court special leave to appeal against the decision of the Division Bench in so far as it upheld the rejection of their claims to Annappa's half share in the mortgaged property. Hence the present appeal. The plaintiffs-respondents, who are the legal representatives of Annappa and against whom the present appeal is directed, have not entered appearance in this appeal.