NARAYAN NANAJEE GAYADHANI Vs. GANESH TRIMBAK GAYADHANI

JUDGEMENT

(1.) (After dealing with certain preliminary matter not material to the report his Lordship proceeded) : Next, turning to the main point, this is whether the mortgagees can debit the mortgagor with the whole or some portion of the alleged improvements which they have effected by re-building the property. Now, one difficulty in this case is that the original mortgage in 1851 was not of the entire property. It was only of one fourth of a particular property. But, in 1914, the defendants, who were then the mortgagees of this one quarter and the absolute owners of the remaining three quarters, pulled down the whole building and erected a new building consisting of a ground floor and three upper floors. Before us, it is not, I think, contended that the mortgagor can recover his share of this building without allowing for some portion, at any rate, of the expenditure by the mortgagees on the new building. But undoubtedly, the quantum is in dispute and to some degree also the principles on which any relief should be granted.

(2.) The appellant-mortgagees refer to Section 51 of the Transfer of Property Act and claim that that section applies. It is said, on the other hand, that they could not have believed in their absolute ownership in good faith inasmuch as they had pleaded in the above suit that they were only mortgagees. But, when one comes to look at the decree in the 1907 suit, it is reasonably clear, I think, that the Judge considered that the mortgage was either too old to be considered as a chose-in-action or else that the mortgagor's heirs and legal representatives had by their conduct and acquiescence renounced or lost their right to redeem. Consequently, he held that the defendants were not mortgagees as they claimed, but were absolute owners, and that consequently the then suit, which was for a partition by one of the three sons of the original mortgagee Laxman, could be maintained. Accordingly, the learned Judge directed that the plaint houses were to be divided into three parts, and that one of them was to be given to the then plaintiff, and the partition was to be effected under the Partition Act.

(3.) This, I take it, could only have been done on the basis that the alleged mortgagees were really the absolute owners of the present suit property. No doubt, that partition was not binding on the mortgagor, because he was not a party to it. But it was clearly not a collusive suit, and, under the circumstances, it seems to me that the present defendants, having regard to that decision of the Court, which, we are told, was affirmed by the High Court, would be entitled to consider that they were the absolute owners of the property. No doubt, in view of the present suit that opinion of theirs was wrong, but I am only dealing with their position in 1914 under Section 51 of the Transfer of Property Act. Accordingly, I would hold that they believed in good faith that they were absolutely entitled to the property. I. accordingly, agree with the finding of the trial Court at page 9, line 48, "Good faith can be attributed to defendants conduct."