RAMLINGAPPA RUDRAPPA MUKKANNAVAR Vs. DHONDI SUBRAO KUTRE

JUDGEMENT

(1.) The property in suit originally belonged to one Subrao. He mortgaged it to one Balwantrao in January 1898. Subrao died in January 1899. In March 1899, his eldest son Appaya sold the equity of redemption in five out of six lands to Govind Ganesh, and Govind conveyed his interest to Hanmant on May 26, 1908. In July 1908, Hanmant sold his interest in these lands to the father of defendants Nos. 1 and 2. In 1916, Appaya sold the equity of redemption to defendant No. 5 in the remaining land.

(2.) The plaintiff, who is the younger brother of Appaya, filed the present suit in August 1918 for the redemption of the mortgage in favour of Balwant by Subrao, alleging that Appaya was a minor when he conveyed his interest in the lands to Govind in March 1899; that he himself attained majority within three years prior to the date of the suit, and that he was entitled to redeem. It appears that the mortgage in favour of Balwant was redeemed by the father of defendants Nos. 1 and 2 in 1908, and the present suit was filed against defendants Nos. 1 and 2 who claimed to have purchased the equity of redemption in respect of the five lands, and against defendant No. 5, who purchased the equity of redemotion in respect of the remaining land from Appaya. The issues were not clearly framed, and only the following two issues were dealt with by the trial Court:-(1) What is the age of the plaintiff? and (2) Is the suit bad because it does not contain a prayer for setting aside the sale-deeds ? It was found that the claim was barred because the plaintiff attained majority more than three years before the date of the suit, and that as there was no prayer to set aside the sale-deed, the suit was bad.

(3.) The plaintiff appealed to the District Court which found that in fact Appaya was a minor at the date of the conveyance in favour of Govind, i.e., on March 7, 1899, that the sale in favour of Govind was void, and that it did not require to be set aside. The learned Judge, therefore, came to the conclusion that the suit required to be dealt with on the merits as regards the lands in respect of which the equity of redemption was conveyed to Govind, But as regards the land conveyed to defendant No. 5, the learned Judge was of opinion that even though the suit was within time, as there was no prayer to set aside the sale, the plaintiff's suit ought to be dismissed. This is rather an anomalous result; because it means that though the plaintiff may claim redemption of the whole mortgage as against defendants NOS. 1 and 2, and get back the mortgaged lands in their possession the equity of redemption in a part of the mortgage property conveyed to defendant No. 5 would remain outstanding. The learned Judge dismissed the suit as regards defendant No. 5 and remanded it as regards the other defendants for disposal on the merits.