SHANKAR SANTIRAM VARUTE Vs. NANA SAKHARAM VARUTE

JUDGEMENT

(1.) This is plaintiffs second appeal, Survey Nos. 896/2 and 869 were mortgaged under a registered Mortgage Deed dated 20th March, 1925 for a sum of Rs. 450/- by the then owner of the property. It appears that Survey No. 869 happened to be an Inam land and mortgage thereof was not permissible under the Vat Hukum that was then in force and in view of the illegality involved in this mortgage transaction to the extent to which it affected the Inam land Survey No. 869, State moved in the matter and took over the possession of the said land from the mortgage. The plaintiff purchased the other Survey No. 869/2 at a Court auction on 15-12-1941. As the actual possession of the land was with the defendant the mortgagee, the plaintiff could be said to have purchased only the equity of redemption. He then instituted a suit, out of which the second appeal arises, in the Court of the Third Join Civil Judge, Junior Division, at Kolhapur for redemption. He offered the entire amount of the mortgage money i.e. Rs. 450/-. But however, he claimed redemption of Survey No. 869/2 which alone he happened to be the purchaser. Amongst defences raised by the defendant, one is this the plaintiff was not entitled to claim redemption of only one land when the two lands were mortgaged. The learned trial Judge over ruled this objection of the defendant. He took notice of the fact that the other survey number was not in the possession of the mortgagee right from the date of mortgage, as in view of the violation of the Vat Hukum the said land had already been taken possession thereof from the mortgagees. He accordingly decreed the plaintiffs suit.

(2.) On appeal by the defendant, the learned Assistant Judge thought that such redemption was violate of section 60 of the Transfer of Property Act. He also thought that the State as well as the heirs of the original mortgagor were necessary parties to the suit. This how, the learned Assistant Judge allowed the appeal of the mortgagee and dismissed the plaintiffs suit. Mr. Nawangule, the learned Advocate appearing for the appellants contends that this case does not involve any question of splitting of the mortgage. I find much substance in this contention. It is true that two lands were mortgaged. But as a result of the law then in force, mortgage transaction in regard to the Inam land became inoperative. In fact, as rightly held by the learned trial Judge the mortgagee himself never remained in possession of the Inam land and is not in a position to restore possession even if the plaintiff were to ask for redemption of the said land. It is pertinent to note that the plaintiff never claimed that the land in dispute covered only the part of the mortgaged property. It appears that the learned Assistant Judge also seems to have been impressed by some statement on behalf of the plaintiff. He has referred his right to reserve his right for the other land. Mr. Nawangule contended that he will not proceed against the mortgagee for any relief as far as the other land is concerned. To my mind, no such statement is also necessary.

(3.) Mr. Varerkar, the learned Counsel appearing for the respondent relied on the provision of section 60 of the Transfer of Property Act. Section 60 of the Transfer of Property Act can have application only if mortgagor seeks to redeem only the share in the property or seeks reduction of only part of the mortgaged property. In the view that I am taking, section 60 has no application to the facts of the case as the mortgage transaction must be deemed to have been operative and effective only to the extent of Survey No. 896/2. The other ground for dismissal of the suit is equally mis-conceived. The State is interested only in Survey No. 869. It is not know how the State can be deemed to be a necessary party to the present suit when no claim is make for the other land. The original mortgagor in also not necessary party to the suit and it was not disputed by the mortgagee, that the appellant is his successor because of being the auction purchaser. The learned Judge relied on some judgment in which the heir of the mortgagor was shown to be interested in the mortgaged property. Perusal of the judgment indicates that the dispute concerned about Survey No. 869 which is not the suit land. I am unable to agree with the learned Assistant Judge.