VINAYAK Vs. SITABAI

JUDGEMENT

(1.) (After stating facts as above the judgment proceeded.) The findings of fact arrived at by the lower appellate Court have not been questioned in second appeal and only questions of law remain for consideration. The first question for consideration concerns the propriety of the finding of the District Judge that as the next reversioners Mt. Anjirabai and Mt. Rangobai concurred in the mortgage by Mt. Tanabai, plaintiff has no locus standi to question the transaction. The contention of the appellant in this connexion is that even granting that the parties are governed by the Bombay school of law, the appellant is still entitled to enforce his equity of redemption and that the decree in suit No. 47 of 1921 is not and cannot be binding on him. The decisions in Rangasami Goundan v. Nachiappa Gounden A.I.R. 1918 P.C. 196 and Debi Prosad Chowdhury v. Golap Bhagat [1913] 40 Cal. 721 have been relied on in this connexion as laying down the principle that the only effect of the consent of the next reversioners in a transaction such as I am concerned with is to raise a presumption that the transaction was a right and proper one, i. e., justified by legal necessity. These cases, however, have little direct bearing on the present one in which the parties being governed; by the Bombay school of Hindu law, no question of legal necessity as such arises, and so far I find myself in complete agreement with the finding arrived at by the District Judge in para. 6 of the judgment appealed against: cf. Malik Saheb v. Malik Arjunappa [1914] 38 Bom. 224.

(2.) BUT , apart from this, another aspect of matters has to be considered in the present case. The District Judge has found that the plaintiff was not validly represented in the award and subsequent Court proceedings by his mother who, as one of the mortgagees, asserted an interest adverse to him. In my opinion, this fact vitiated these proceedings against him : cf. Sellappa Gounden v. Masa Naiken A.I.R. 1924 Mad. 297, and Murlidhar v. Pitambar Lal A.I.R. 1922 All. 91. Even assuming, therefore, that the gift was subsequent to the mortgage, the plaintiff was at least entitled to his equity of redemption and the proceedings in suit No. 47 of 1921 must be considered a nullity as against him.

(3.) ON both these grounds, therefore, I am of opinion that the plaintiff is entitled to succeed so far as his claim for a declaration is concerned. The judgment and decree appealed against are accordingly reversed and a decree granting plaintiff a declaration that the decree in suit No. 47 of 1921 is void and inoperative against him will issue. As plaintiff cannot in the present state of matters succeed in whole as regards the relief claimed by him and has failed as regards the relief of possession, the suitable order as regards costs seems to me to be that the parties should bear their own costs as incurred in all three Courts. I order accordingly.