MADHAVRAO HARBAJI THAKUR Vs. AMBABAI LAXMAN JADHAV

JUDGEMENT

(1.) The facts which have given rise to this appeal are these, Bala and Malhari were cousins who owned Survey Nos. 868 and 808 in equal shares. Apparently in 1890 they sold these lands to their brother-in-law Devji, who afterwards conveyed one moiety in each of these two Survey Numbers to the wife of Malhari and the other moiety to the wife of Bala. The wives of Bala and Malhari mortgaged their respective moieties to the defendant in 1901 In miscellaneous proceedings the creditors of Bala sought to attach his interest in these lands, but the attachment was raised on the ground that he had no attachable interest in these lands, The creditors filed a suit in 1905 to which both Bala and Malhari, and the wives of Bala and Malhari, named Kashi and Baku respectively, and also the present defendant mortgagee Madhavrao were parties In that suit it was held that the conveyance to Devji was merely a nominal and sham transaction, that Bala was the true owner and that the conveyance was merely a device to defeat the claims of the creditors. Thereafter there was a litigation between the mortgagee and Thaku, the daughter of Bala, who claimed to redeem the property as having inherited the equity of redemption belonging to her deceased mother. In that suit the mortgagee pleaded that the equity of redemption belonged to Bala and not to his wife. But it was held in that suit that the mortgagee was estopped from disputing the title of Kashi, the mother of the plaintiff in that suit, and the question whether as between Bala and his wife Kashi, the true owner was Bala was held to be outside the scope of that suit for redemption. That view was upheld by the High Court in S. A No. 630 of 1920 decided on August 9, 1921. We are not concerned in this suit with that moiety of the two lands.

(2.) It appears that with regard to the other moiety, which originally belonged to Malhari, and which was conveyed to his wife, Baku, in the manner indicated, that it was put up for sale by the Collector in execution of a money decree in a small cause suit which the defendant-mortgagee had obtained against both Malhari and his wife Baku. Before the decree was executed both of them died, with the result that in execution proceedings the son of Malhari was brought on the record as the legal representative of both the judgment-debtors, and in execution in July 1914, the right, title and interest of both the deceased judgment-debtors were put up for sale and purchased by one Trimbak Keshav Thakur, who in his turn sold the same to the present defendant, who was the decree-holder also.

(3.) The present suit was filed in 1921 by the daughter of Baku for redemption of the mortgage by Baku in 1901. The defendant pleaded that as a fact she had no right to redeem because the property really belonged, not to Baku, but to Malhari; and secondly, that as regards Survey No. 868, he had purchased the right, title and interest both of Malhari and Baku in the moiety, and, therefore, the plaintiff had no right to the equity of redemption.