SULABAI BEMDA KOLI Vs. MATHURABAI BABURAO JAGTAP

JUDGEMENT

(1.) THE present appeal is filed by the original defendant No.1 in Regular Civil Suit No.177 of 1978, challenging the judgment and decree dated 27.9.1989 passed by the Second Additional District Judge, Sangli in Regular Civil Appeal No. 485 of 1984.

(2.) THE facts are not in dispute. House property No.3802 is subject matter of the present litigation. Hanmant Koli was original owner of the suit property along with other properties. Hanmant Koli died leaving behind widow Sitabai and son Shankar. On 21.12.1972 Shankar died leaving behind his son Ganpati. Sitabai died on 21.5.1976. By registered mortgage deed dated 12.7.1973 Ganpati mortgaged suit property in favour of Sulabai, appellant/defendant No.1 herein. To the said mortgage, Sitabai, wife of Hanmant has given consent. On 19.8.1974 Ganpati, son of Shankar sold his right of redemption to Vilas Jagtap. Present respondents/plaintiffs are heirs of said Vilas Jagtap. On 29.1.1975 Sitabai alone sold suit property to the appellant Sulabai. Vilas expired on 19.4.1976. Thereafter, on 10.6.1977, present respondent filed application bearing Misc. Application No.31 of 1977 for redemption and they also deposited the mortgage money. As here was refusal on the part of the present appellant, the present suit is filed for redemption. The appellant resisted the claim by filing written statement stating that she has purchased the property from Sitabai, therefore, the respondents are not entitled to redemption. It was further stated that Ganpati has only 1/4 share in the suit property, therefore, at the most redemption to the extent of 1/4 is permissible. She also claimed that she has right of preemption.

(3.) THE respondents filed Regular Civil Appeal No.485 of 1984. The Second Additional District Judge, Sangli by his judgment and decree dated 27.9.1989 allowed the appeal and declared that respondent No.1/plaintiff No.1 Mathurabai is entitled to redeem and take possession of the suit property. The said decree is challenged in the present appeal. The question involved in the present appeal is restricted to share which the respondents can redeem. Mr.Katikar, advocate appearing in support of appeal stated considering the shares of the parties at most Ganpati will have 1/4 share, therefore, the present respondents will be entitled to redeem Ganpati's share and it must be declared that the appellant is the owner of the remaining 3/4 share and that the respondents are not entitled to redeem nor to seek possession thereof.