HAJARKAN KALUBAVA Vs. KESARKHAN KAYAMKHAN

JUDGEMENT

(1.) This appeal is filed by the original defendants Nos. 2 and 3 as the lower Appellate court had confirmed the trial Court's decree, decreeing the plaintiffs' suit for recovery of possession of the suit lands from the defendants except for a slight variation as regards the quantum of mesne profits. The Original defendant No. 1 has been joined as a respondent and he having died during the pendency of the suit, his heirs have been brought on record and finally joined as respondents along with the plaintiff.

(2.) The short facts which have given rise to this appeal are as follows:-

(3.) The parties in this case are Molesalam Muslim Garsias of Gujarat. One Rupsing had executed a mortgage with possession for consideration of Rs. 955 in favour of Kalubava, the father of defendants 1,2 and 3, on 16th July 1928 as per Ex. 46. On the death of Kalubava, the heirs of defendants 1,2, and 3 became the owners of the said mortgagee rights. Rupsang died on 16th December 1931. Thereafter Rupsang's widow Manba executed a mortgage with possession in favour of defendant No. l Kanaksing in respect of the suit lands along with certain other properties as per Ex. 45 on 14-4-1943. The consideration of this mortgage of Rs. 1,410 was made up of Rs. 955 due on the previous mortgage Ex. 46 and the balance was paid in cash. An endorsement was made below Ex. 46 on 14-4-1943 to the effect that the debt under the previous mortgage was discharged. Thereafter on 6-6-1946 defendant No. 1 Kanaksing executed the present sale deed or assignment of his rights as mortgagee in respect of the suit lands in favour of the plaintiffs for a sum of Rs. 1,410 as per Ex. 38. It appears that on 266- 1947 Bai manba executed gift deed in respect of the equity of redemption of the suit lands in favour of defendants 2 and 3 as pre Ex. 41. The plaintiffs case was that after he purchased the mortgagee's rights from defendants No. 1 as pre Ex. 38, he was put into possession on 6-6-1946. However, on 19-6-1946, defendants 2 and 3 forcibly took away possession from the plaintiffs tenant. The plaintiffs, therefore, filed an earlier suit, being Civil Sit No. 124 of 1948-49. By the order at Ex. 34, the Court had granted leave for withdrawal of the said suit with permission to file a fresh suit as it was satisfied as to the existence of sufficient grounds and because of a formal defect shown by the plaintiffs. The said order was passed on 6-7-1953 granting permission and the said suit was dismissed. Costs having not been pressed by the defendants, no order was made as regards the costs. Thereafter, the present suit was filed on 10-10-1953 for recovery of possession of the suit lands with past three years mesne profits from the defendants. Defendant No. 1 remained ex parte all throughout. The contention of defendants 2 and 3 in the written statement Ex. 9 was that defendant No. 1 was not the owner of the suit lands and he had no authority to sell the suit lands on behalf of defendants 2 and 3. They also contended that Bai Manba had executed a gift deed in their favour on 26-6-1947 at Ex. 41, and that they were all along in possession and the plaintiffs could not recover possession from them. They had also contended that the original debt had been extinguished as no application had been made under the B.A.D.R. Act. They, therefore, contended that the plaintiffs' suit was not maintainable against them. They also contended that the permission for withdrawal could not be granted and so the present suit was barred by res judicata. At the earlier stage the trial Court had held that the suit was not maintainable as plaintiffs had not filed any application under the B.A.D.R. Act against the heirs of Manbu, defendants 2 and 3. The plaintiff had gone in appeal and it had been held that the defendants could not prove that they were debtors and that they were indebted to less than Rs. 15,000. The plaintiffs right as a mortgagee was not, therefore, held to be extinguished under S. 15 of the B.A.D.R. Act even though he made no application under the B.A.D.R. Act. The case was, therefore, remanded. Thereafter the trial Court held that the present suit was maintainable and was not time-barred. The trial Court held that the gift deed in favour of defendants 2 and 3 was proved and was valid. The trial Court also held that the transfer dated 6-6-1946 in favour of the plaintiff by defendant No. 1 Kanaksing was valid and binding on defendants 2 and 3, and that Section. 41 of the Transfer of Property Act applied to the case as the plaintiff was a bona fide transferee for value without notice from the ostensible the plaintiff's suit for possession with mesne profits. In appeal the Appellate Court also held that the gift deed in favour of defendants 2 and 3 was valid and that the transfer dated 6-61946 in favour of the plaintiff by defendant No. 1 was binding on defendants Nos. 2 and 3 both as a result of Section 41 and Section 43 of the Transfer of property Act and as in any case as there was ratification by defendants Nos. 2 and 3 of the transaction which was entered into by defendant No. 1 as Karta of the joint family and because the law regarding Hindu joint family was applicable to such Molesalam Muslim Garsias. Both the Courts had recorded a concurrent finding that possession of the suit lands continued with defendants Nos. 2 and 3, and that the plaintiff did not succeed in obtaining possession as contended by him. The lower Appellate Court, however, found that the original mortgage Ex. 46 had been discharged by the fresh mortgage executed by defendant No. 1 at Ex. 45. The plaintiff, getting title by his purchase of the rights as a mortgagee under the mortgage Ex. 45, was held to be entitled to get possession from defendants 2 and 3 because even after the gift deed by Bai Manba they only stepped into the shoes of the mortgagor and had no right to remain in possession as against the plaintiff. The Appellate Court, therefore, confirmed the trial Court's decree in favour of the plaintiff for possession of the suit lands. It only varied the said decree as regards the quantum of mesne profits by directing an inquiry under O. 20, R 12 (1) (c). Defendants 1 and 2 have, therefore, filed the present appeal.