FOZMAL BHUTAJI Vs. SHRIDHAR VITHAL

JUDGEMENT

(1.) Two brothers, one Vithal Ramchandra Parulkar and another Vishnu. Ramchandra Parulkar, had monetary dealings with a firm of money lenders by name Himmatmal Manji & Co. commencing from sometime prior to November 17, 1922V The account in respect of these monetary dealings was maintained in the joint names, of Vithal Ramchandra Parulkar and Vishnu Ramchandra Parulkar in the books of account of Messrs. Himmatmal Manji & Co. This account was adjusted on or about November 17, 1922, when a sum of Rs. 25,150 was found due and owing by the two brothers to the firm of Messrs. Himmatmal Manji & Co. as of that date. On the same date the adjustment was recorded in the books of account of Messrs. Himmatmal Manji & Co. showing the said sum of Rs. 25,150 as due by both of them "Personal debts to the account of both till today, November 17, 1922." Signatures of both of them were appended at the foot of this adjustment. On the same day it was agreed between the firm of Messrs. Himmatmal Manji & Co. and the two brothers that they should execute in consideration of a sum of Rs. 17,500, being part of the said sum of Rs. 25,150 found due by them to the firm at the foot of that adjustment, a mortgage of their immoveable property situate at Bassein and as a part and parcel of that adjustment an indenture of mortgage was executed by the two brothers in favour of the three partners of the firm of Messrs. Himmatmal Manji & Co., viz. Fojmal Bhutaji, Joharmal Fuaji and Pokhraj Himmatmal, mortgaging their property situate at Bassein to secure repayment of the said sum of Rs. 17,500 with interest thereon as stipulated therein. As regards the balance of Rs. 7,650 which remained over out of the said sum of Rs. 25,150, the two brothers executed on November 17, 1922, an agreement whereby they agreed to pay the said sum in the manner therein mentioned. A post-dated cheque for the said sum of Rs. 7,650 was given by the two brothers to the firm of Messrs. Himmatmal Manji & Co., and in default of their honouring the cheque on the due date thereof, the two brothers agreed to execute in favour of Messrs. Himmatmal Manji & Co. a mortgage of another property belonging to them and situate at Ratnagiri. I may state that the said cheque was not honoured, the two brothers executed in favour of Messrs. Himmatmal Manji & Co. a mortgage of their property at Ratnagiri and the said amount was recovered by Messrs. Himmatmal Manji & Co. by subsequently selling that property.

(2.) The due date for repayment of the amount under the indenture of mortgage dated November 17, 1922, was November 16, 1923. The two brothers failed and neglected to pay the amount on the due date for repayment thereof and failed and neglected to make any payment of interest either. The family consisted of four brothers, Vithal and Vishnu the two brothers who had executed this mortgage and two others Shankar Ramchandra Parulkar and Bhaskar Ramchandra Parulkar who were at their native place. In the year 1929 a suit was filed by Shankar being suit No. 299 of 1929 in the Court at Deogad for a partition of the property, the subject-matter of the mortgage. The firm of Messrs. Himmatmal Manji & Co. were made co-defendants in that suit inasmuch as it was sought to be declared in that suit that the mortgage which had been executed of this property by Vithal and Vishnu in Bombay in favour of Messrs. Himmatmal Manji & Co. was not binding on Shankar and the other brother Bhaskar. This, suit was contested inter alia by Messrs. Himmatmal Manji & Co. Owing, however, to insufficiency of evidence put forward on behalf of Messrs. Himmatmal Manji & Co. the Court came to a conclusion adverse to their contentions. It was declared in the decree which was passed in that suit No. 299 of 1929 in the Deogad Court on February 10, 1931, that Vithal and Vishnu were each of them entitled to a one-fourth share in the property, the subject-matter of the mortgage dated November 17, 1922, and that the mortgage executed by Vithal and Vishnu did not bind the interest of the other members of the family, viz. Shankar and Bhaskar. Messrs. Himmatmal Manji & Co. filed an appeal against this decree which was dismissed by the Appeal Court on June 17, 1933. They filed a second appeal in the High Court here which also was dismissed by the High Court on April 12, 1937, thus confirming the decree which was passed by the Court at Deogad on February 10, 1931.

(3.) Vishnu was adjudicated an insolvent on December 21, 1934, and defendant No. 6 herein is the Official Assignee of the estate of Vishnu. Vithal died in about 1936 leaving him surviving his five sons, defendants Nos. 1, 2, 2A, 3 and 4, and his widow defendant No. 5 herein, Defendants Nos. 1 to 5 were members of a joint and undivided Hindu family along with the deceased Vithal and they have been impleaded in this suit as the surviving members of the joint family constituted by Vithal and his branch. On the death of Vithal whatever right, title and interest he had in the immoveable property, the subject-matter of the mortgage dated November 17, 1922, survived over to the surviving members of the joint family. The fact that defendant No. 5 is the widow makes no difference to this position, because she would be entitled ordinarily to a right of residence and maintenance out of the joint family properties or under Deshmukh's Act to a share equal to that of a son out of the property belonging to the family. Nothing has been suggested in the arguments on behalf of defendant No. 1 that there is anything wrong in the plaintiff asking for a decree against the one-fourth share in the said immoveable property which belonged to the branch, of Vithal.