GANESH RAGHUNATH DESHPANDE Vs. RAJARAM LAXMAN DESHPANDE

JUDGEMENT

(1.) The plaintiff brought this suit for accounts under Section 15D of the Dekkhan Agriculturists Relief Act. The plaintiff is a member of a family which is shown in the pedigree given in the judgment of the trial Court. The suit is in connection with two mortgages executed by one Govind Sadashiv shown in the pedigree. The way in which the various defendants to the suit are connected has been clearly stated by the trial Court. It is sufficient to state that defendants Nos. 14 to 17 are apparently interested in the property along with the plaintiff. Prior to the institution of this suit, defendants Nos. 16 and 17 had filed suit No. 939 of 1924. On knowing of the institution of the suit, plaintiff applied to the Court to add him as a party to the suit, but his application was rejected. Plaintiff thereupon brought the present suit, impleading all necessary and proper parties. The two suits were consolidated by order of the trial Court which negatived the protest of defendants Nos. 16 and 17 against the consolidation. The trial Court held that the property in suit belonged to three of the branches of the family shown in the pedigree, and that besides the branch of defendant No. 16, Waman Rajaram of a second branch from whom the present plaintiff is descended and Shripad Vithal belonging to the third branch from whom defendants Nos. 14 and 17 are descended, had shares in the mortgaged property and that the plaintiff's share was not barred by adverse possession. The Court also found the sum due on the mortgages. In suit No. 939 of 1924 the Court passed a decree for redemption and it is stated that defendants Nos. 16 and 17, who were plaintiffs to the suit, have paid off the amount and got possession of the mortgaged property. The Court, however, decreed that plaintiff in this suit should get his share (whatever it may be) in the mortgaged property from the plaintiffs in suit No. 939 of 1924 by paying them money proportionate to his share. Thus, though plaintiff was held to have an interest in the property, his share was left unascertained. On appeal by defendants Nos. 16 and 17, the lower appellate Court dismissed the present suit on the ground that it was not maintainable, and the plaintiff has as a consequence appealed to this Court.

(2.) The contentions raised by the defendants have been summarised by the trial Court. I propose only to take up points urged before me. The first point argued is that the plaintiff is not entitled to redeem at all because the mortgages in suit were not executed by him nor by any person under whom he claims. I do not think that there is any force in this contention. Section 91 of the Transfer of Property Act enacts, inter alia, that besides the mortgagor, any person (other than the mortgagee of the interest sought to be redeemed) having any interest in the property can institute a suit for redemption of the mortgaged property. Thus, what is wanted by Section 91 is that the person seeking to redeem has a proprietary interest in the mortgaged property. He need not be the original mortgagor or any person claiming through or under him. It has been held that junior members of a Malabar tarwad have a proprietary interest in the property, though they are disentitled by their personal law from redeeming : Soopi V/s. Mariyoma (1919) I.L.R. 43 Mad. 393. Section 83 of the Transfer of Property Act, as it originally stood, enacted: At any time after the principal money has become payable and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage. This provision is substantially preserved even by the Amending Act of 1929. By Section 91 a person interested in the equity of redemption can, as stated above, institute a suit for redemption. Order XXXIV, Rule 1, enacts : Subject to the provisions of this Code, all persons having an interest either in the mortgage Security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Having regard to these provisions, it is clear that there is no force in the contention advanced on behalf of the respondents. Plaintiff claims an interest in the mortgaged property and it is clear from the pedigree that he is apparently interested in the mortgaged property. Whether that interest of the plaintiff is lost by adverse possession or not is a matter to be determined on evidence. The pedigree given in the trial Court is admitted and proved to be correct. If so, the suit is maintainable as plaintiff is interested in the property. It may be that if the plaintiff has lost his interest by adverse possession, his claim will fail on that ground.

(3.) It was next contended that a suit of this kind is not covered by Section 15D of the Dekkhan Agriculturists Belief Act. The argument is based on the terms of the section itself as also on a number of decisions under the Act, which I shall refer to in a moment. The relevant portion of Section 15D is as follows :- Any agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount. It was not contended before me that plaintiff is not an agriculturist. He was held to be an agriculturist by the trial Court. Property in which he claims an interest has been mortgaged. The section places no limitation to the effect that a suit under Section 15D can only be brought by the person who is the original mortgagor or by any other person claiming through or under him. Supposing a manager of a Hindu joint family in his capacity as such manager mortgages a property belonging to the family and subsequently sides with the mortgagee and refrains from redeeming the mortgage, if the contention for the respondents were to be accepted, it will not be open to any other member of the family to institute a suit for redemption. The Dekkhan Agriculturists Belief Act is intended to benefit a certain class of agriculturists. The Act gives a wide meaning to the term "agriculturist", so that Section 2 in its second part enacts as follows :- In Chapters II, III, IV, V and VI, and in Section 69, the term agriculturist , when used with reference to any suit or proceeding, shall include a person who when any part of the liability which forms the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law. Therefore, the words "any agriculturist whose property is mortgaged may sue for an account", as used in Section 15D, should not be taken in the restricted sense sought to be given to them by the learned advocate for the respondents. The words are wide enough to include a person who is interested in the equity of redemption provided he is an agriculturist within the meaning of the term as defined in the Dekkhan Agriculturists Belief Act, though he may not be the original mortgagor or a person claiming through or under him.