HIRABAI CHANNAPPA Vs. GANESH DAT TATRAYA

JUDGEMENT

(1.) THIS is a second appeal from the appellate decree passed by the learned District Judge South Satara, at Sangli, in Appeal No. 315 of 1953.

(2.) THIS second appeal raises a very short question about the right of the plaintiff-mortgagor to redeem the mortgaged property. The contention of the mortgagee is that the right of redemption of the mortgagor has been extinguished. The two Courts below have taken different views on this subject. The trial Court has held that the right of redemption of the mortgagor was not lost, and the first appellate Court has taken the view that the right was so lost.

(3.) THE suit properties consist of a house and two lands. It is common ground that these properties originally belonged to one Channappa Jangam. He died in or about 1910 leaving behind him his widow Hirabai, the present plaintiff, and a widowed daughter named Bhagirathi. It is also common ground that Hirabai mortgaged the suit properties on or about 12-6-1914 in favour of one Dattoba. Defendants Nos. 1 and 2 are the successors in title of that mortgagee Dattoba. Exhibit 32 is a copy of the mortgage-deed. The mortgage was for a sum of Rs. 1,200, and was a usufructuary mortgage. Under the mortgage-deed, the mortgagee was to be in possession of the mortgaged house and the two lands. The important terms of the mortgage were that the mortgagee was to remain in possession of the mortgaged properties in lieu of interest. The municipal tax in respect of the house was to be paid by the mortgagor and the assessment in respect of the two lands was to be paid by the mortgagee. The period of redemption was five years. The present suit, from out of which the present appeal arises, was brought by the plaintiff Hirabai for redemption of the aforesaid mortgage. The contention of the defendants Nos. 1 and 2 was that Hirabai had lost her right of redemption by virtue of certain events, which I propose to mention immediately. It appears that, in 1917, one Virupaxayya lay claim to the suit properties. His contention was that he was the cousin of Channappa; that he and Channappa were joint in estate; that the suit properties were joint family properties; and that, on the death of Channappa, he became the sole owner of those properties. On these allegations, Virupaxayya brought Suit No. 27 of 1917, for possession of the suit properties. The plaintiff Hirabai was the only defendant in that suit. The mortgagee Dattoba was not made a party thereto. That suit of Virupaxayya ended in a compromise decree. The consent decree is at Exhibit 38, dated 14-6-1917. By this decree, Virupaxayya was declared to be the sole owner of the suit properties. However, the suit house was given to the plaintiff Hirabai for maintenance of herself and her widowed daughter Bhagirathi. For this purpose, she was allowed to retain possession of the suit house. It was provided that the suit house was to revert to Virupaxayya on the death of the plaintiff Hirabai and Bhagirathi. It was also further provided that one-half of the income from the suit lands was to be given to Bhagirathi for her maintenance. The contention of defendants No. 1 and 2 in the present litigation is that the plaintiff Hirabai has lost her right to redeem the suit properties by virtue of the provisions contained in this consent decree Exhibit 38. I propose to consider this question first. The question has got to be answered with reference to the provisions contained in section 60 of the Transfer of Property Act. That section gives a right to a mortgagor to redeem the mortgaged property at any time after the principal money has become due. However, there is a proviso to that section, which is material for the purpose of the present litigation. That proviso is as follows : "provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court. " Therefore, in order to succeed, the defendants Nos. 1 and 2 are required to establish that plaintiff Hirabai has lost the right of redemption either by an act of the parties, i. e. , the mortgagor and the mortgagee, or by a decree of a Court. The question for consideration is whether the consent decree Exhibit 38 has extinguished the right of the plaintiff Hirabai to redeem the suit properties. This question came up for consideration in Raghunath Singh v. Hansraj Kunwar, 61 Ind App 362 : (AIR 1934 PC 205 ). In this appeal, Their Lordships were concerned with the construction of that part of the aforesaid proviso which states that a right of redemption is lost by the decree of a Court. The observations which Their Lordships made on the interpretation of the aforesaid part of the proviso are to be found at p. 369, and they are as follows :