SUNDRABAI VITHAL DESHPANDE Vs. LAKSHMAN RAMCHANDRA DESHPANDE

JUDGEMENT

(1.) This action was instituted by the plaintiff to recover mesne profits of certain watan land for three years 1918-1920, with interest from October 21, 1918, the date of the death of plaintiff's father who had mortgaged that watan property in 1908. The land was restored to the plaintiff by the revenue authorities in 1921 on the ground that plaintiff's father was not competent to alienate watan land beyond the term of his life. The trial Court dismissed the plaintiff's suit on the ground that the possession of the mortgagee, after the death of the original watandar- mortgagor, was not wrongful; and that although under Section 5 of the Bombay Hereditary Offices Act, 1874, the mortgage itself did not subsist, the personal remedy did not cease.

(2.) In appeal the plaintiff's claim was decreed for two years 1919-1920. The District Judge relied upon the decision in Krishnaji Sakharam V/s. Kashim (1919) I. L. R. 44 Bom. 500, S. C. 22 Bom. L. R. 385, where it was held that the mortgage of the watan property came to an end on the death of the mortgagor. Thereafter the possession of the mortgagee became that of a trespasser. In that case the mortgagee sued to recover the mortgage amount with interest relying on a personal covenant in the deed It was held that the covenant in the mortgage only meant that the mortgagor was personally liable to pay the amount without any hindrance in his life-time. The covenant did not refer in terms to his heirs and successors. The receipt of rent after 1901 could not be deemed to be payment for the purposes of Section 20 of the Indian Limitation Act. 1908, and, therefore, the claim was barred by limitation. The question, however, whether the mortgagee from a watandar is liable to pay the mesne profits after the original mortgagor's death for the period between the death of the mortgagor and the time when his successor to the watan obtains possession, does not seem to have been clearly decided in any case to which we have been referred.

(3.) In Padapa V/s. Swamirao (1900) 1. L. R. 24 Bom. 556, S. C. 2 Bom. L. R. 548 it was held that an alienation by way of mortgage of Watan property, or any part of it, executed when Regulation XVI of 1827 was yet in force, had no operation beyond the life of the watandar who mortgaged. The mortgage was in its inception void against the heir of the watandar, and had not become validated against the heir by reason of the repeal of the section in Regulation XVI of 1827, relating to this subject, by Bombay Act III of 1874. The Subordinate Judge passed a decree that the plaintiff should recover possession and that the investigation of the mesne profits should be reserved. That decision was eventually confirmed by their lordships of the Privy Council. The only question argued before their lordships was whether the mortgage itself was void, and there does not appear to have been any argument on the question whether the successor to the watan could recover the mesne profits from the date of the death of the mortgagor. It may be taken, however, that the order of the Subordinate Judge with regard to mesne profits was approved. The question whether the successor to the watan can be sued on the personal covenant in the mortgage of his predecessor is an entirely different one. The trial Judge appears to have been led away by the argument which has been again renewed in this Court that because his father, the mortgagor, was liable to be sued on his personal covenant, the plaintiff was also liable to be sued, so that he could not seek to recover the mesne profits. That question is irrelevant to the present suit, We think that it is clear that the plaintiff was entitled to succeed, and consequently the appeal will be dismissed with costs.