DATTATRAYA MAHADEO VIRNODKAR Vs. SHRIPAD HARI WALKE

JUDGEMENT

(1.) This appeal arises from a suit originally filed by the respondent-plaintiff Shripad Hari Walke against Vishnu Ganesh Walke and others for redeeming the property described in the Plaint, which consists of one-third share in the house situated in Survey No. 82/2 Ubhya Bajar and entire share in another house situated in Survey No. 48/1 (Khaskilwada Bajar property) together with a Padvi attached to it. It appears that the property was mortgaged in favour of one Vishnu Ganesh Walke on 5-6-1915 by Narayan Laxman Walke on 5-6-1915 by Narayan Laxman Walke. Defendants Nos. 1 to 3 are the sons of the mortgage Vishnu Ganesh Walke. The other defendants have obtained interest of Narayan because in a Small Cause Suit there was a decree at the instance of one Mhapsekar. In Darkhast No 924 of 1922-23, right, title and interest of Narayan were sold in auction through Court and one Subhedar happened to be the purchaser of that interest on 30-1-1926. Subhedar was put in possession by Court. It was a symbolical possession because it appears that there were tenants. On 15-`2-`937 Subhedar assigned his interest to one Dhuri. Defendants No. 4, 5 and 6 are claiming through this Dhuri. This is as far as the defendants are concerned. As regards the mortgagor Narayan, it appears that the entire property originally belonged to his father Laxman Walks. Narayan had three brothers by name Har, Dattaram and Shantaram. The present plaintiff Shripad Hari Walke is the son of Hari Laxman Walke. It appears that on 19-10-1896 Narayan Laxman Walke sold this undivided 1/4th interest in the joint family to Hari Laxman Walke. Hari thus became the owner of one-half share. On 5-5-1896 Narayan Laxman Wlke sold this undivided 1/4th interest in the joint family to Hari Walke gifted all his interest in favour of Dattaram and Shantaram, his brothers. Therefore, Dattaram and Shantaram became full owners of the family property. On the same day, i.e. on 5-5-1898, both these brothers executed a document of permanent lease (Ex. 76) in favour of Narayan Laxman Walke. As that document, (Ex. 76) Now stands it appears that only Padvi in front of house situated in Survey No. 48/1 and adjacent open space was leased to Narayan Laxman Walke. Subsequently Shantaram died, and it is on record that on 27-2-1950 Dattaram gifted all his interest in favour of Narayan Laxman Walke. In 1915, however, Narayan has purported to mortgage one-third share in the house in Survey No. 82/2 and entire other house in Survey No. 48/1. The Padvi which he had received in his character as a permanent lessee, also came to be mortgaged. Nobody is disputing this mortgage before the Court. But the dispute relates to the capacity of the present plaintiff Shripad Hari to ask for redemption. The learned trial Judge came to the conclusion that since the equity of redemption belonging to Narayan Laxman Walke came to be sold by the Court in an execution of the decree obtained by Mhapsekar, nothing remained with Hari or with Kar's son, and as such, he had no present right to redeem the property. The suit came to be dismissed.

(2.) The learned Appellate Judge, however, came to a different conclusion. According to him, by reason of the permanent lease in favour of Narayan Laxman Walke on 5-5-1898 he had obtained interest in the property which devolved upon Hari, and as such, he could redeem the disputed mortgage of 561915. The Appellate Judge relied upon a decision in" Venkatesh Krishna Khasbag v. Bhujaballi Annappa Gargatti, (1933) ILR 57 Bom 194 = (AIR 1933 Bom 97) which lays down that a landlord is entitled to redeem a mortgage effected by his permanent tenant who dies leaving no heirs, as he is a person having an interest in the land leased to the tenant under Section 91 of the Transfer of Property Act.

(3.) It appears from the judgment of the lower Appellate Court that he was influenced by the recitals in the lease deed, which indicated that there was no right to alienate the lease property, and in case there was any such transfer, the lease would be taken as void. Since there was actual alienation, the learned Judge felt that the clause of forfeiture applied, and as such the rights reverted to the lessors. It appears that it is in this connection that the learned Judge had come to the conclusion that the present plaintiff who is the successor-in-title from Dattaram and Shantaram has the interest in the mortgaged property as contemplated by Section 91 of the Transfer of Property Act.