BAI JADI Vs. PURSHOTTAM NAROTTAM DAVE

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Mr. Justice Shah affirming the decree of the lower appellate Court which dismissed the plaintiff's suit. The facts are set out in the judgment from which it appears that one Punja was the original mortgagee of the suit property. When he died his widow Bai Manek became entitled to the rights of Punja as mortgagee, and Bai Manek created a san-mortgage in favour of one Pitamber in respect of the suit property and other property, that is to say, she pledged her mortgage rights which had come to her from her husband. Pitamber filed a suit to recover his debt from the widow and others and obtained a decree for the amount claimed with the direction that "on the defendants failing to pay, the plaintiff do sell the right, title and interest of Bai Manek, the 1 defendant, in the plaint-hypothecated house and the mortgage right of Rs. 460 Babashahi created by Mathur Mangal the 6 defendant over his portion in favour of Punja Garbad." Ultimately this mortgage right by Mathur in favour of Punja was put up for sale and purchased by Pitamber. Then the sons of Mathur sold the equity of redemption to defendant No 7, and defendant No. 7 redeemed the mortgage created in favour of Punja by paying off the amount of the mortgage to Pitamber.

(2.) The result of all these proceedings would be that defendant No. 7 became the absolute owner of the property. But when Manek died in 1917, her daughter sued to recover possession of the property as the next reversioner after Manek's death. That suit could only be based on the suggestion that the mortgage rights which had come to Bai Manek from her husband were still alive, and that, therefore, the reversioner succeeded to those mortgage rights, and was entitled to get possession of the property, subject to being redeemed by the original mortgagor or his successors, This contention of the plaintiff could only succeed if the rights which Bai Manek succeeded to on her husband's death with regard to the suit property could be considered as immoveable property, so that the widow's interest only could be sold, and on her death the reversioner could succeed to the property. But no authority has been cited for the proposition that a usufructuary mortgage is immoveable property, so that if the mortgage is redeemed during the widow's life-time, and the widow spent the money, as she would be entitled to do, the reversioner could claim against the party redeeming to be again put in possession of the property until redeemed a second time. Clearly the mortgage rights which were vested in Bai Manek represented moveable property, and could be sold in execution of the decree against Bai Manek, and no question of legal necessity would arise. The mere fact that Bai Manek was in possession as mortgagee, would not cause those mortgage rights to be treated in law as immoveable property, as all that the widow was entitled to was to retain possession of the property as security for the debt until she was redeemed. Therefore what was sold in execution of Pitamber's decree was the right to be redeemed, and when as a matter of fact the purchaser of that right has actually paid the mortgage money, the result was that the mortgage came to an end, and no right was left to which the reversioner could succeed on the death of the widow. I think, therefore, that the decision of Mr. Justice Shah was right and the appeal should be dismissed. Coyajee, J.

(3.) I agree. In my opinion the conclusion arrived at by Mr. Justice Shah and expressed by him in the following terms is perfectly correct. His Lordship observes: "It is rather unfortunate that the sale certificate in favour of Pitamber has not been produced. But it is clear, having regard to the terms of the decree, that as a result of the purchase on the 28 February 1900, he got all the interest in the mortgage right of Punja which his widow had at that date; and when defendant No. 7 redeemed this mortgage in 1914 it seems to me that it was as effective as it would have been, had there been no transaction at all by Bai Manek with Pitamber and had the redemption been effected with Bai Manek. Bai Manek during her life-time represented the estate of her husband and the person interested in the equity of redemption would have been entitled to effect the redemption of the mortgage with her and that redemption would be binding upon the reversioner on her death."