SURATSING CHANDANMAL MARWADI Vs. NOMANBHAI ABDULHUSSEIN BOHARI

JUDGEMENT

(1.) THIS is an appeal from a final decree passed in a suit on mortgage. The facts underlying this appeal may be briefly set out as follows:-

(2.) THE property in suit which is an extensive building comprising two storeys in some parts and underground cellers at City Survey No. 2255 situate at Ahmednagar, originally belonged to one Mir Chiraknddin Syed Kamaluddin Pirajade. Mir Chiraknddin executed a usufructuary mortgage-deed in favour of two persons, Premraj Pannalal and Pannalal Ribakram for a sum of Rs. 6,000 on 8-4-1895. Under the terms of the mortgage bond the mortgagees were to remain in possession of the property and to appropriate the usufruct towards the interest. The rate of interest us stipulated in the deed was 9 per cent per annum. Again on 1st August 1896 Chirakuddin borrowed a sum of Rs. 3,750 and passed a second mortgage bond in respect of the same. Possession of the mortgage was confirmed under the second bond and it was stipulated therein that the mortgagee was to apply the usufruct of the same house towards interest accruing due on the amount of advance under the second mortgage. Chirakuddin had one son known as Kamaluddin and a daughter Tarifarabegum, who is defendant No. 3 in this suit. Kamaluddin had two sons, Syed Shamiuddin and Syed Moinuddin, and two daughters, Rafiya Sultana and Bilkhis. Kamaluddin died in 1948 leaving behind his widow, Sharfunnissa, two sons and two daughters named above. Sharfunnissa had given up all her rights in favour of Kamaluddin during her life-time. After Kamaluddin's death his widow, two sons and two daughters sold their interest in the mortgaged property to defendant No. 1. The sale-deed was passed by Sharfunnisa for herself and in her capacity as guardian of her minor daughter, Bilkhis, and holding a power of attorney on behalf of her major sons and daughter.

(3.) ON the side of the mortgagees, out of the two mortgagees, Pannalal is the sister's son of the other mortgagee, Premraj. Premraj died in 1896. His son, Jashraj had died before Premraj leaving behind him two sons, Chandanmal and Kundanmal. Kundanmal had four sons including Saratsing. Chandanmal died in 1935 leaving behind him his widow. During his life-lime he adopted Suratsing, son of Kundanmal as a son to him. This was in the year 1934. It is not necessary to set out the various transactions that took place in the family of the mortgagees. It is sufficient to mention that in 1931 suit-mortgages fell to the share of Chandanmal. Disputes, however, cropped up between Pankuwarbai and Mishrubai, the married daughter of Chandanmal, on the one side and Suratsing who claimed to be the adopted son of Chandanmal on the other. Suratsing, who is the plaintiff in the present suit, bad filed through one of his joint guardians Motilal Kundanmal, a suit No. 1656 of 19-12 against Pankuwarbai for a declaration that he was the validly adopted son of Chandanmal and also for possession of the family property including the suit-mortgage. The plaintiffs suit was decreed in respect of both the reliefs. At the same time it was directed that the plaintiff would not be entitled to recover possession from the adoptive mother, Pankuwarbai unless he made a provision for her maintenance. Sometime later, that is on 17th March 1947 Pankuwarbai passed a document styled as release deed in favour of defendant No. 1 to the effect that the mortgage was satisfied and the property was given back to him. It appears that on same day defendant No. 1 secured possession of the two portions of the mortgaged property which have been described in the plaint in paragraph (1) clauses (b) and (c ). The plaintiff continued to remain in possession of the remaining portion of the property which has been described in Sub-clause (a) of Clause (1) of the plaint. On 31-8-1949 that plaintiff file the suit which has given rise to this appeal praying for possession of the portions of the suit building of which he was dispossessed by defendant No. 1, presumably on the basis of the release deed obtained by him from Pankuwarbai. To that suit defendants Nos. 1 and 2 were the only defendants in the first instance. Defendant No. 1 put in his written statement and amongst other contentions he asked for redemption of the mortgage after taking account of the receipts of the income from the mortgage-property. Because of this prayer for redemption the trial Court thought it fit to add the names of Tarifara Begum and Bilkhis as parties to the suit presumably on the ground that Tarifara Begum had not joined in the sole-deed and Bilkhis was a minor at the time of the said deed and Sharfunnissa purported to execute the document as guardian of Bitkhis. After protracted hearing a preliminary decree came to be passed under which the trial Court granted the prayer of redemption in favour of defendant No, 1. The trial Court, however, rejected the plaintiff's claim for possession. The trial Court further directed that accounts should be taken of the receipts of income and interest due on the mortgage by a commissioner. There was an appeal to the High Court and in modification of the decree of the trial Court plaintiff's prayer for possession was granted. The rest of the decree was substantially confirmed.