JAYAWANT JIVANRAO DESHPANDE Vs. RAMCHANDRA NARAYAN JOSHI

JUDGEMENT

(1.) This suit was brought by the plaintiff, claiming to be the reversioner of one Shamrao, the original owner of the property, for redemption of a mortgage or for possession of the property. Shamrao, the original owner, had one son Kakaji who predeceased him, but left a widow Rangubai. Rangubai survived Shamrao, and she during her life enjoyed the property. She passed a mortgage-bond in favour of Narayan, father of the first defendant, on the 21st January 1860. In 1565 she disappeared, and she has not been heard of probably since 1865, or certainly since 1870, when she is alleged to have received a cash allowance. In 1861 a suit was filed against her by Bodhraj on a money-bond passed by Rangubai to him on the 18th February 1860, and Bodhraj obtained a decree on the 9th December 1862. The property was sold in execution of that decree, and Bodhraj became the purchaser at the execution sale in February 1868. In the same year Narayan, the father of defendant No. 1, filed a suit against Bodhraj on the mortgage-bond, and eventually a decree was passed in the Appellate Court in favour of Narayan establishing his right as mortgagee and ordering the defendant Bodhraj to pay Rs. 882 to Narayan in satisfaction of the mortgage-debt within six months, and declaring that if the payment was not made within the time specified, Narayan would become the absolute owner and Bodhraj would be foreclosed That decree was passed on the 20th September 1870, yet notwithstanding the decree the plaintiff sues as the reversionary heir of Shamrao for redemption of the mortgage, or if it be held that the mortgage is not subsisting, for ejectment of the defendants.

(2.) The first Court decided the case in favour of the plaintiff, on the ground that under Section 108 of the Indian Evidence Act the Court must presume that Rangubai died at the time of suit, notwithstanding that she had not been heard of, at all events since 1870, and that, therefore, the plaintiff s claim was in time and he was entitled to recover on the death of Rangubai as the reversioner.

(3.) From that decision an appeal was preferred to the lower Appellate Court which reversed the decree, and we have now to decide whether the decision of the lower Appellate Court is correct. Dealing first with the position under the mortgage-bond, under certain circumstances the mortgage might have been binding upon the reversioners, but it is found as a fact that the mortgage was not passed by Rangubai for any legal necessity or for justifying cause. It, therefore, bound only the interest of Rangubai in the property. The mortgage by reason of the foreclosure decree on default by Bodhraj in 1870 came to an end, and the mortgagee became entitled as against Rangubai to the position of an absolute owner of her estate in the mortgaged property. There is, therefore, no mortgage in existence which can be redeemed, and the only question is whether the plaintiff can succeed in his suit as a reversioner upon the death of Rangubai having regard to the provisions of Article 141 of the Indian Limitation Act.