HAJI YOONUS SHEKH MOHIDDIN NADKARSHEIKH ALI ISHAMUDDIN VALAD SHABUDDIN Vs. SHEKH HASANABDUL KARIM ABDUL KARIM SHERIFA JAVJE SHEKH USMAN TARE

JUDGEMENT

(1.) 1.These are companion appeals preferred by the appellants who are some of the original plaintiffs in suits to recover possession of certain property and for an injunction against the defendants restraining them from recovering the income of the suit lands. The suit property formed certain fractions of an eight annas khoti taxim in the village of Sanglat in the Ratnagiri district. This eight annas taxim was at one time owned by three Mahomedan brothers. In October, 1791, some of the descendants of these three brothers, mortgaged this taxim to one Narayan or Naroi Damle. The deed of mortgage is not in evidence, but the mortgage has been admitted by the parties. In 1849, one of the persons interested in the mortgaged property filed a redemption suit, but nothing appears on the record with regard to this suit except a statement of account of the mortgaged property in 1849 signed by the pleader of the mortgagee (exhibit 92). Then in 1863, Shaikh Ibrahim, father of defendant No.1 in Second Appeal No.426, filed Suit No.1361 of 1863 to redeem a portion of the mortgaged property from the son of the original mortgagee. A decree for redemption was palssed in the plaintiff's favour, but no time was fixed for payment and there was no provision for foreclosure. That decree was confirmed in appeal subject to a slight variation in the mortgage amount. A second appeal was preferred to this Court in 1867 by the descendant of the original mortgagee. In the memorandum of that appeal the existence of the mortgage and the relationship of mortgagor and mortgagee between the parties was admitted as subsisting. This memorandum (exhibit 90) was signed by the pleader of the appellant. The appeal was dismissed, but thereafter neither the mortgagor nor the mortgagee did anything in the way of redemption or foreclosure. It appears that a botkhat of the khoti property was prepared in 1893, and the Damles, i.e. the mortgagees, were continued to be shown in that register from 1893 to 1913. In 1921 and in 1922 a fractional share in the suit property was sold by the descendants of the original mortgagee to two persons. One transaction was a sale-deed by the three descendants of the original mortgagee of their fractional share to two persons Abdul Rahiman and Abdul Karim on April 27, 1921, and in the other deed another descendant of the original mortgagee also sold his fraction of the mortgaged property to Abdul Karim on April 19, 1922. In both these deeds, the vendors, i.e. Damles, purported to sell the property as owners, and the purchasers, who are some of the descendants of the original mortgagors, are the main defendants in these suits. The present plaintiffs are some of the other descendants of the original mortgagors, and they have filed these suits against the defendants treating them not as purchasers but as redeeming co-mortgagors, to recover possession of their proportionate shares in the property comprised in the two sale-deeds on payment of the proportionate amount of the price stated in the two sale-deeds. Their case in short is that the two sale-deeds practically amounted to deeds of redemption of the original mortgage, that they were entitled to recover possession of their share from the redeeming co-mortgagors of the property, and that the cause of action arose when the property had been redeemed by these defendants from the descendants of the original mortgagee, i.e. in 1921 and 1922.

(2.) THE defence to the suits was that the mortgagors had lost their right to redeem and their title was also extinguished, that the Damles had become owners of the property and the two deeds of 1921 and 1922 conveyed shares in the property itself and not the mortgage rights in them, so that the defendants having purchased the property from its owners got rights of ownership which the plaintiffs cannot challenge.

(3.) THESE five appeals (the plaintiffs in one suit having not appealed to this Court) have been preferred against the decrees passed by the learned District Judge. Mr. Coyajee on behalf of the appellants has based his argument on one point, viz., that the Act to apply to the present suits' for the purpose of determining whether they are barred by limitation is the Act in force at the date when the suits were filed, namely, the Limitation Act of 1908, and that under that Act an acknowledgment made by a mortgagee or his agent, either specially or generally authorised, would be valid under Section 19.Therefore, the acknowledgments of 1849 and 1867, although they might be invalid under the Acts 1859 and 1871, must be deemed to be valid as tested by the provisions of the present Act which alone applies to the suits. He relies upon several cases the most important of which is the decision of their Lordships of the Privy Council in Lala Soni Ram v. Kanhaiya Lal (1913) L.R. 40 I.A. 74, s.c. 15 Bom. L.R. 489.