ADIVEPPA CHANNAPPA KITTUR Vs. RACHAPPA BALAPPA HOSMANE

JUDGEMENT

(1.) This appeal from the judgment dated January 22, 1942, of Mr. B.C. Patil, who was then First Class Subordinate Judge at Belgaum, has come before this full bench as it raises questions of some importance with regard to the application of the Indian Limitation Act, 1908, to mortgage suits in cases in which the mortgagee was a Hindu joint family, which subsequently divided, so that the individual members of the family or the divided branches, represented by their kartas or managers, become co-owners of the mortgage. The same position may also follow, when the original mortgagee is a Mahomedan, who subsequently dies, and the mortgage devolves upon his heirs. Such difficulties are indeed inherent in any system which does not require rights in or to immovable property to vest in a legal representative, but which recognises a multiplicity of co-owners, who are often difficult to trace or who may be unwilling to co-operate.

(2.) By a mortgage dated November 1, 1926, one Shivappa, as karta of a joint Hindu family, lent the sum of Rs. 3,000 to defendants Nos. 1 and 2. Shivappa died, and the mortgage debt thereupon belonged to the surviving members of the joint family, who sometime thereafter separated and became divided into three branches, each of which had its karta. The plaintiff is one of the three kartas. Defendant No. 1 sold three of the properties subject to the mortgage to defendant No. 4 and he is the sole appellant in this Court.

(3.) It is not, nor could it be, disputed that the three kartas held the mortgage debt as co- owners by tenancy in common. The mortgage is in writing and by it the debt is to be repaid at the expiration of one year and it is provided: These lands (which are specified by reference to survey numbers) are given in simple mortgage and the same are in our (the mortgagor s) possession. You shall recover the total amount due to you (the mortgagee) from these properties.