VENKAJI NARAYAN KULKARNI Vs. GOPAL RAMCHANDRA DESHPANDE

JUDGEMENT

(1.) The plaintiff in this suit mortgaged the land to the defendants in 1876, and in 1879 he passed a razinama relinquishing all his occupancy rights in the said land in favour of the defendants. The defendants at the same time gave the complementary kabulayat. The trial Judge held that this transaction amounted to a relinquishment of the equity of redemption by the mortgagor in favour of the mortgagees. The learned Judge of first appeal has held that it did not. In his opinion the only effect of the razinama and kabulayat under the Act of 1865 was to confer upon the mortgagees the privilege, as the learned Judge calls it, of paying the Government assessment. We find it a little difficult to understand in what light this could have appeared to the learned Judge a privilege for which any person would be anxious to pay good consideration. However that may be, on the facts found by the learned Judge or first appeal, the case is clearly covered by authority. The judgment of this appeal Court in Dagadu v. Sakharam See Note following Vishnu Sakharam Phatak v. Kashinath Bapu Shankar (1886) I.L.R. Bom. 174. and Tarachand Pirchand v. Lakshman Bhawani (1875) I.L.R. 1 Bom. 91 appears to us to have settled the law beyond controversy upon the only question we are asked to answer. In our opinion the razinama and the kabulayat of the year 1879 effectually extinguish the plaintiff s equity of redemption. We must, therefore, now reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with all costs upon the respondents throughout. Decree reversed.

(2.) Note.- The following judgment was delivered by Scott C.J. and Batchelor, J. in Dagon v. Sakharam (Appeal No. 12 of 1912 from Order) on the 25th February 1914:- Basil Scott, Kt., C.J.

(3.) In this case we have no doubt that the Razinama and the Kabulayat (assuming that we cannot look at the document Ex. 37 which was contemporaneous with them) operate to transfer the equity of redemption to the mortgagee in whose favour the Court had found that a sum of money was Payable by the mortgagor. The case is not distinguishable from Tarachand Pirchand v. Lakshman Bhavani (1875) I.L.R. 1 Bom. 91 and Vishnu Sakharam Phatak v. Kashinath Bapu Shankar (1886) I.L.R. 11 Bom. 723. The words are apt to declare the relinquishment of all the right of the mortgagor in favour of the mortgagee, and the trans action was such as was contemplated by the terms of the old Section 74 of the Land Revenue Code. We reverse the order of the lower appellate Court and restore the decree of the original Court with costs throughout upon the plaintiffs.