JAVERBHAI JORABHAI Vs. GORDHAN NARSI

JUDGEMENT

(1.) The plaintiff, who is the appellant before us, brought this suit as mortgagee to recover possession of a house and Rs. 14 as rent or, in the alternative, to recover Rs. 749 from the mortgaged house and other properties of defendants in case the Court should hold that plaintiff s mortgage was void. The plaint set out that the house in suit and certain other properties were, by a registered deed of 1897, mortgaged to the plaintiff s father by defendants 1 and 2 and Shankar Narsi, the deceased husband of defendant 3, these mortgagors having purchased the properties from the bhagdar owner in 1893; that in 1901, on accounts being taken, part of the property was sold to pay part of the mortgage debt, while the balance of the debt was secured by a fresh mortgage of the house in suit; that the defendants 1 and 2 and Shankar Narsi or, after his death, his widow, the third defendant, remained in possession of the house as plaintiff s tenants under yearly rent-notes; that the last such rent-note was passed in 1908; and that the defendants refused to surrender possession. It was further pleaded that, in case the plaintiff should not be held entitled to recover possession, he was in any event entitled, under a covenant contained in the deed of mortgage, to a sum of Rs. 749 as compensation, that being the sum due under the mortgage.

(2.) The defendants admitted the mortgage-deed and rent-notes, but contended that they were void under the Bhagdari Act, that the plaintiff took no interest in the property either under the mortgage or under the rent-notes, and that the suit was barred by limitation. On the material issues both the trial Court and the lower Court of Appeal have found that the mortgage and the leases were void ab initio, that the defendants were not estopped from raising this contention and that the plaintiff s claim to compensation was barred by limitation. On these findings, so far as concerns the house now in litigation, the suit was dismissed. From this dismissal the plaintiff brings the present appeal.

(3.) The property in suit being admittedly an unrecognised sub-division of a bhag, its alienation is prohibited by Section 3 of the Bhagdari Act, 1862. The argument advanced in the lower Courts that this mortgage could be saved from the prohibition was not pressed before us, and Jijibhai Laldas v. Nagji Gulab (1909) 11 Bom. L.R. 693 is authority for the view that the mortgage is void under the Act none the less because the original mortgagors were not bhagdars. The rent-notes were, we think, part and parcel of the one indivisible transaction; they are, therefore, tainted with the illegality which affects the mortgage, and they must suffer the same fate. We hold that both the mortgage, and the rent-notes are void.