BAI DIWALI Vs. UMEDBHAI BHULABHAI PATEL

JUDGEMENT

(1.) In 1896, Kalidas Haribhai, father of the first two defendants, purported to mortgage to Ranchhod Madhdas, whose representative the 3rd defendant now is, an unrecognised share of a bhag or the narva, contrary to the provisions of the Bhagdari Act. Such mortgage by reason of those provisions was void ab initio. The mortgage-deed provided that after possession by the mortgagee for eleven years the mortgage amount was to be paid to him whenever he should demand it either out of property or by the mortgagor or his heirs personally. Ranchhod under the professed mortgage obtained possession of the land, and subsequently his rights under the mortgage claim were sold and purchased by the plaintiff at a Court-sale.

(2.) In 1910, the plaintiff filed a suit against the representative of Ranchhod and also against the representatives of the professed mortgagor to obtain possession from the representative of Ranchhod of the property then in his possession. No claim was made in that suit for payment of the amount of the so-called mortgage debt, nor was it alleged that any demand had been previously made. The suit failed on the ground that the mortgage was invalid, and therefore unenforceable, and the plaintiff as the purchaser of the mortgagee s claim could get no relief from the Court.

(3.) The present suit was filed in the following year to recover the amount of Rs. 788-7-0 from the estate of the deceased mortgagor, and, in the alternative, if that should not be allowed, to recover a smaller sum from the holder of a decree against the representative of the deceased mortgagee. The learned Subordinate Judge rejected the plaintiff s claim except in so far as he claimed in the alternative to recover Rs. 577 from the estate of the holder of the decree against the deceased mortgagee.