GANPATRAO Vs. VITHABAI

JUDGEMENT

(1.) 1. This appeal arises out of a suit for possession of a 2 anna share in each of the villages of Dhanoli and Khadki in the Tahsil and District of Wardha. One Atmaram owned a 4 anna share in each of these villages, and he or his sons who succeeded him, executed three successive mortgages: (i) a mortgage of a 4 anna share in each village on 13-3-85 to a person whose rights were eventually assigned to Atmaram's separated brother Tukaram; (ii) a mortgage of a 2 anna share in each village on 5-3-91 to Gangadhar and others; (iii) a mortgage of a 2 anna share in each village on 20-2-93 to Dewaji. The family tree of Atmaram and Tukaram is as below: Pandurang _______________________|________________________ | | Tukaram Atamaram | _____________________________|_______ Govindrao | | | Bajirao Ganpatrao | | =Bhima Bai | | adopted Ramrao (adopted by Govindrao). | Ramrao=Vitha Bai (plff).

(2.) THE widows of Dewaji instituted Civil Suit No. 25 of 1901 on the mortgage of 1893 against Bajirao and Bhima Bai, who were then the representatives of the mortgagor. They obtained a preliminary decree for foreclosure on 23rd December 1901 and a final decree for foreclosure on 12th December 1903. They were placed in possession on 13th April 1904. Thereafter Bajirao and Bhima Bai possessed only a 2 anna share in each of the villages, and the other 2 anna share belonged to the widows of Dewaji, subject of course to the mortgages of 1885 and 1891.

(3.) IN the meantime Gangadhar and his co-mortgagees of 1891 had instituted Civil Suit No. 76 of 1911 on their mortgage, against Bajirao and Bhima Bai alone and obtained a preliminary decree for foreclosure on 13th August 1911. That decree was made final on 9th August 1913 whereby the 2 anna share of Bajirao and Bhima Bai in each village was foreclosed to Gangadhar and his co-mortgagees, who in pursuance of that deoree entered into possession on 13th September 1913 and 16th September 1913. The plaintiff Vitha Bai contends that by virtue of the final decree in Civil Suit No. 101 of 1904 she became the owner of the 4 anna share in each village. She did not claim the 2 anna share in each village which bad been previously foreclosed by the widows of Dewaji but claimed the 2 anna share in each village' now in the possession of the defendant who now represents the mortgagees of 1891. She obtained symbolical possession, as already stated, on 13th October 1913 and she instituted the present suit on 13th October 1925. The lower Courts have held that she is entitled to possession of the share claimed subject to the right of the defendants, as representing the mortgagees of 1891 to redeem. The Court of first instance held that the price of redemption was Rs. 517, but the lower appellate Court increased this amount to Rs. 842. The plaintiff has filed a cross-objection claiming that it should be Rs. 2,334 exclusive of costs.