RAGHUNATH VITHAL BHAT Vs. MADHAV RAVAL KAMAT

JUDGEMENT

(1.) THIS appeal is confined to one piece of land 25 gunthas of Survey No. 71, Pot No. 1, the plaintiffs having succeeded with regard to the other lands in the suit. The plaintiff's have lost in both the lower Courts and they now appeal on the grounds mentioned in the memorandum of appeal. The respondents do not appear. The land originally belonged to one Biranna and his three sons, Hanmana, Timmanna and Narayan, as joint family property. In 1898 the family separated, and in the partition deed various lands were allotted to the three sons. Survey No. 71, Pot No. 1, was allotted to Biranna without power of alienation, it being provided that on the death of Biranna and his wife, the land was to be divided between the three eons in certain proportions. Both the Courts seem to have held that the three sons took a contingent interest but they took under that deed a vested remainder in the land, which they could have disposed of oven before they were entitled to possession. Narayan, who was entitled to twenty-five gunthas, mortgaged his share by a simple mortgage to the plaintiffs. A decree was passed on the mortgage in 1907, and eventually the property was brought to sale and purchased by the plaintiffs in 1916. Before Biranna died a suit was brought against him in which a decree was passed by which he lost possession of the suit land. The learned Judge has held that that decree was binding on the sons as the heirs of their father. It would not bind them as they were not the heirs of their father. They had a vested interest in the remainder, subject to the lives of their father and mother. They would not be entitled to possession until the death of their mother, and it is difficult to see why neither of the lower Courts was satisfied with the death certificate produced by the plaintiffs. We think the death certificate ought to have been treated as proof of Devamma's death, and therefore limitation could only run against the remainderman from 1908. But plaintiffs as mortgagees would not be bound by possession being taken from Biranna, the mortgage being a simple mortgage. That was decided by a Full Bench of the Madras High Court in Vyapuri V/s. Sonamma Boi Ammani (1915) I.L.R. 39 Mad. 811. F.B. where all the authorities on the subject are very fully discussed. In any event as Narayan was only entitled to possession in 1908, even he would not be barred from filing a suit at the time the plaintiffs filed their suit.

(2.) WE think, therefore, first, on the ground that there was a vested remainder in the sons and not a contingent remainder; and, secondly, on the ground that the suit was not barred, that the plaintiffs are entitled to succeed to the twenty-five gunthas of Survey Number 71, Pot No. 1 which are in dispute. There will be a decree in their favour for that Survey Number. There will be an inquiry as to mesne profits from the date of suit till possession is given or three years from this date. The plaintiffs will be entitled to their coats against respondents Nos. 3 to 5.