TARUBAI Vs. VENKATRAO

JUDGEMENT

(1.) In this case the plaintiffs sued to redeem certain property by payment of such amount as on account taken might be found due from them, in respect of a mortgage executed by the widow of one Kondi Aga (the father of two of the plaintiffs and grandfather of the third) to the deceased grandfather of defendant No. 1, which possession, for Rs. 170, about thirty years before suit. The plaintiffs allege that the mortgage had been satisfied by the produce received, but defendant 1 (sic) on demand, refused to render an account on 1 March, 1897. The other defendants were joined (the plaint stated), as they had been in enjoyment on behalf of defendant 1.

(2.) The first defendant admitted that the land had been mortgaged with possession, but alleged that the defendants 2 and 3 had been in possession since 1885 by virtue of= an agreement entered into by them with the grandfather of the first defendant. Of the other defendants, Nos. 2 and 3 denied the rights of the plaintiffs, alleging that the plaintiffs being females could not succeed to the property which is Fakiri Vatan, and as such, defendants alleged, incapable of being managed by females. The defendants also alleged that they had enjoyed possession throughout and that the claim of the plaintiffs was time-barred.

(3.) The Court of first instance found the mortgages alleged proved and held that the plaintiffs were not disentitled by family usage, but were entitled to succeed-as heirs of the mortgagor. It held, however, that their claim was time-barred by reason of the fact that the defendants had been in possession as entitled to the equity of redemption and had on 31 August, 1885, by a kabulayht passed before a conciliator, undertaken to pay the Amount of the mortgage, and had paid money accordingly, and that the defendants having assumed an adverse attitude from 31 August, 1885, the plaintiffs suit, not having been filed until 5 October, 1897, was time-barred. On these grounds the suit was dismissed by the Court of first instance.