IBHRAM GULAMHUSAIN MULNAJI Vs. MOHIDDIN BALKU MODAK

JUDGEMENT

(1.) The suit property belonged to three persons, Gana, Tanu and Yesa. Whether they were joint owners or tenants-in-common does not appear. On 6 December 1884, Tanu mortgaged the property to Vithal Ganesh by Exhibit 54 and, on the 15 December 1884, all the three created a further charge in favour of Vithal, Exhibit 30. It was mentioned that all the three agreed to be bound by the previous mortgage of Tanu. On the 26 August 1889, one Chinto purchased at an auction sale in execution of a money decree against Gana and others the equity of redemption of Gana in the suit property. In 1891 the sale certificate, Exhibit 51, was issued. On the 27 September 1895, Vithal, the original mortgagee, and his son, Govind, sold their interest as mortgagees to the first defendant. On the 7 January 1905, a document was passed by Vithal, the son of Gana, and by Tanu to the first defendant. It purported to be a mortgage-deed in substitution of Exhibits 54 and 30 and so creating a fresh mortgage for the previous amounts plus the amount admitted to have been spent by the mortgagees on improvements and further cash advance. On the 13 February 1906, the first defendant obtained a conveyance out and out from Vithal and Tanu.

(2.) On the 20 October 1895, Chinto, who purchased the interest of Gana and his right to redeem these properties, sold his right, title and interest to Vithal and his son Govind who had only recently, on the 27 September, sold their mortgagees rights to the first defendant. On the 7 November 1908, the plaintiff purchased from Vithal's son Govind and another their interest in the property. He now resists the claim of the plaintiff to redeem on the ground that by the document of 7 January 1905 the previous mortgages were extinguished and he So held adversely to any one who claimed to have any right to redeem these mortgages.

(3.) The question is whether the plaintiff, after all these various transactions, has still retained a right to redeem the mortgaged property. If a mortgagee gets in the equity of redemption from one of two co-mortgagors and claims to be in possession as owner to the knowledge of the other co-mortgagor, then it may be said that the right of the co-mortgagor to redeem his share will be extinguished after twelve years. We have not been referred to any authority for the proposition that if a co-mortgagor is not acquainted with the purchase of the equity of redemption from the other co-mortgagor, still, time is running against him in favour of the mortgagee who has purchased.