RAMCHANDRA AVADHUTRAO PATIL Vs. TUKARAM BABAJI CHAUGULA

JUDGEMENT

(1.) Some forty years ago four brothers, sons of one Joti, who were at that time joint, partitioned their family property. One item in the family property had been mortgaged with possession, and, therefore, was not divided. Maruti was the surviving brother of the four, and he died about 1911-12 leaving a widow Kasa. The plaintiffs claiming as heirs of Maruti have filed this suit to redeem the mortgage. In their plaint they stated that Maruti separated during his father s life- time after taking his share of the family property, and his widow Kasa had, therefore, no interest in the suit property. It has been proved that the plaintiff deposited Rs. 340 with the 1st defendant mortgagee, but as he insisted upon Kasa being a party to the redemption, the negotiations fell through, and the plaintiffs recovered their Rs. 340.

(2.) Then defendant No. 1 allowed Kasa to redeem the property, which no doubt was most reprehensible, considering the attitude he had taken up when the plaintiffs wanted to redeem. That was on the 21st May 1915. The plaintiffs filed this suit on the 11th August 1915, and, on the 4th September 1915, defendant No. 2 sold the property to defendant No. 3 who admitted that he knew that the plaintiffs had deposited the mortgage money with the 1st defendant. In this curious state of affairs the trial Court dismissed the suit. But in appeal this decree was set aside, and it was held that the plaintiffs were the owners of the plaint property; that they were already in possession of the plaint house; and that they should recover possession of the plaint land without paying anything to any of the defendants for the mortgage debt in Exhibit 34, which was the deed of mortgage.

(3.) The learned Judge was of opinion that the sons of Joti remained joint with regard to this mortgaged property. He thought he was following the ruling in Gaurishankar Parabhuram v. Atmaram Rajaram (1893) I.L.R. 18 Bom. 611. In that case the plaintiffs sued to recover their half share of the produce of a certain field which they alleged was left undivided at the time of partition. It was held that the suit could not lie to recover a portion of the produce, as the suit was not for partition of the field. But the learned Judge relies upon the dictum of Sir Charles Sargent, which does not appear to be supported by any authority, and was also, with all due respect, obiter in the case before him. The learned Chief Justice said; The circumstance that there bad been a partition in 1876-77 would not, in the absence of any special agreement between the parties, alter their rights as to the property still undivided, as to which they would continue to stand to one another in the relation of members of an undivided Hindu family, and no such agreement amounting to a partition of the fields in question in alleged by the plaintiffs.