GANESH SHANKAR KULKARNI Vs. JANAKIBAI KRISHNAJI KULKARNI

JUDGEMENT

(1.) This second appeal against the decision of the learned District Judge, Kolhapur, has been referred to Division Bench by a learned Single Judge as, in his opinion, it involves important questions, particularly as regards the joinder of proper parties and limitation under Sections 4 and 14 of the Limitation Act, 1908. Principally, this appeal involves the point of limitation and in order to appreciate the same, it is necessary to trace the history of the litigation.

(2.) It is common ground that the land in suit bearing Regular Survey No. 386 admeasuring 22 acres and 39 gunthas originally belonged to Shri Swami Jagat-guru Matha Karvir and Sankeshwar. By a Sanad of Margashirsha Vad 3, Shake 1756, His Holiness granted it in Inam to Hari Ballal. Hari Ballal had two sons named Bhavanrao and Antaji. Bhavan-rao died before 1892 leaving behind his widow Ramabai. Antaji had two sons named Hari and Krishnaji. Hari had a son named Shankar and wife named Radha. Hari died in 1927. In 1892 Shankar was taken in adoption by Ramabai widow of Bhavanrao. Antaji's other son named Krishnaji died in 1955 leaving behind Jankibai, original defendant No. 1, who died in 1961. The said land which was originally Inam land was converted into Rayatava in Fasli 1356.

(3.) On 3rd May, 1888, Bhavanrao created a mortgage in respect of the said Survey No. 386 by a registered deed, Ex. 95. The entire property was mortgaged to Shivram Pujari for Rs. 750. The period stipulated was 10 years. The mortgage-deed provided that the mortgagee was to pay Rs. 156 per annum out of the usufruct to the mortgagor and to appropriate the balance towards the claim of interest on the mortgage amount of Rs. 750. The mortgagee was to redeem the property at any time after 10 years by paying Rs. 750/-. The mortgagee was put in possession immediately. The mortgagee Shivaram Pujari, however, assigned his right, title and interest to Krishnaji Tankasale and his son Vasudeo by two different deeds dated 8th June 1894 and 7th September 1898, being Exs. 96 and 97 respectively, for a consideration of Rs. 500 and Rs. 250 respectively. Shivaram Pujari parted with possession and Krishnaji Tankasale and his son Vasudeo entered into possession and undertook to abide by the old terms and in particular to pay Rs. 156 to Bhavanrao, the mortgagor.