ADIVEPPA CHANNAPPA KITTUR Vs. RACHAPPA BALAPPA HOSMANE

JUDGEMENT

(1.) THIS appeal from the judgment dated January 22, 1942, of Mr. B. C. Patil, who was then First Class Subordinate Judge at Belgaum, has come before this full bench as it raises questions of some importance with regard to the application of the Indian Limitation Act, 1908, to mortgage suits in cases in which the mortgagee was a Hindu joint family, which subsequently divided, so that the individual members of the family or the divided branches, represented by their kartas or managers, become co-owners of the mortgage. The same position may also follow, when the original mortgagee is a Mahomedan, who subsequently dies, and the mortgage devolves upon his heirs. Such difficulties are indeed inherent in any system which does not require rights in or to immovable property to vest in a legal representative, but which recognises a multiplicity of co-owners, who are often difficult to trace or who may be unwilling to co-operate.

(2.) BY a mortgage dated November 1, 1926, one Shivappa, as karta of a joint Hindu family, lent the sum of Rs. 3,000 to defendants Nos. 1 and 2 .Shivappa died, and the mortgage debt thereupon belonged to the surviving members of the joint family, who sometime thereafter separated and became divided into three branches, each of which had its karta. The plaintiff is one of the three kartas. Defendant No.1 sold three of the properties subject to the mortgage to defendant No.4 and he is the sole appellant in this Court.

(3.) BY the prayer to his plaint the plaintiff asked that Rs. 6,000, that is to say the whole mortgage debt of Rs. 3,000 with an additional Rs. 3,000 claimed as arrears of interest, might be recovered with costs and future interest by the sale of the mortgaged property. In the trial Court the learned Judge, for reasons to which I will refer later, made an order for payment to the plaintiff of Rs. 2,000, that is to say, one-third of the total sum claimed to be due, and the order continued: The amount due to plaintiff (as representing himself and his undivided son, defendant No.10) under the suit mortgage is Rs. 2,000 at the date of suit. If defendants Nos. 1 to 4 pay plaintiff within six months this amount and one-third of the costs of suit and interest on Rs. 1,000 at 9 per cent. per annum from date of suit, the plaintiff's mortgage in suit shall stand redeemed and satisfied. In default of payment as aforesaid, the plaintiff will be at liberty to apply for a final decree for sale.