GANESH MORESHWAR JOSHI Vs. VASUDEO VITHAL PARANJPE

JUDGEMENT

(1.) It is necessary to state briefly the facts which have given rise to this second appeal. Certain property belonging to one Bapat, which may be described as the Kelghar property, was mortgaged by him to Paranjpe in 1890, Subsequently in February 1900 Bapat mortgaged the same property to the present plaintiffs (Joshi brothers) for Rs. 2,000, which included the sum of Rs. 1,200 to be paid by the Joshis to Paranjpe in respect of the first mortgage. The present plaintiffs mortgaged certain properties belonging to them and their interest as mortgagees in the Kelghar property for Rs. 4,000 to Paranjpe in April, 1900. The consideration was stated in detail, as including the sum of Rs. 1186-1-6, which was mentioned as being the amount due to Paranjpe under the mortgage by Bapat to him. This mortgage was renewed in 1906 in the same terms. In 1903 the Kelghar property was sold in execution of a money decree against Bapat and purchased by the Rodes; but it was subject to the mortgage of 1900 in favour of the Joshis. The Rodes filed suit No. 131 of 1904 against the Joshis and Paranjpe for a declaration that the said mortgage was "colourable, unreal and without valuable consideration" and for a declaration that the property of Bapat was liable to be sold free from that mortgage. The suit was brought in that form as the property was already declared subject to that mortgage in miscellaneous proceedings before the suit. That suit was dismissed in the first instance, but in appeal (No. 292 of 1905) it was held that the mortgage was colourable and unreal and without consideration; and that defendants Nos. 5 and 6 (i.e. the Paranjpes) were entitled to a charge of Rs. 1186-1-6 in respect of the earlier mortgage by Bapat in their favour. Accordingly a decree was passed declaring the property in that suit (i.e. the Kelghar property) subject to that charge in favour of the Paranjpes and that the mortgage in favour of the Joshis by Bapat was not binding upon the plaintiffs in that suit. This decree was affirmed by the High Court in Ganesh V/s. Purshottam (1908) I.L.R. 33 Bom. 311; 11 Bom. L.R. 26. Subsequently the Rodes filed another suit in 1909 to recover possession of the Kelghar property on the title acquired by them at the Court-sale against the Joshis and Paranjpe. The claim for possession was allowed ultimately by the appeal Court; it is relevant to note that it was held in that litigation that the finding as to the true nature of the mortgage of February 1900 in the suit of 1904 was res judicata against them.

(2.) The Joshis filed the present suit against their mortgagee (Paranjpe) in 1917 for redemption of the mortgage of 1906. In the plaint they described all the mortgaged properties including their interest as mortgagees in the Kelghar property and stated the facts preceeding the suit. They prayed for accounts under the Dekkhan Agriculturists Relief Act, and further prayed that in taking accounts the property at Kelghar and the amount of Rs. 1186-1-6 should be excluded. The defendant filed a written statement in which the above facts were stated but the effect thereof was contested. The trial Court found the first three issues in favour of the defendant and recorded no findings on the remaining issues. It held that the eight annas Khoti takshim of Kelghar required to be included in the present suit, that the Rodes were necessary parties, and that by the judgment in Appeal No. 292 of 1905, confirmed by the High Court in Second Appeal No. 186 of 1907, the defendant was not deprived of his right to claim Rs. 1186-1-6 with interest from the plaintiffs.

(3.) The suit was dismissed as the plaintiffs refused to include the Kelghar property in the suit and to join the Rodes as parties. The plaintiffs appealed; but the same view was taken by the learned Judge, who affirmed the decree of the trial Court.