DAMODARDAS Vs. RODBA

JUDGEMENT

(1.) 1. The mortgage which the plaintiffs claimed to redeem was executed on 8th January 1872 by Narayan Patel who died in December 1880. The mortgage was with possession and comprised a two-anna share in the village of Saoda and a field of 32-30 acres bearing the number 54 and then described as malik wahit. In 1882 there was an agreement between the mortgagee and some, if not all, of the surviving members of the joint family of which the mortgagor had been the head, whereby the mortgagee was to retain the two-annas share in the village and return the field to the other party and the mortgage was to be regarded as extinguished. This agreement was duly carried out.

(2.) THE members of the family at that time were Ramji, aged 24 or 25, Govinda aged 16, Rodba aged 14, Ananda Bai the mother of Ramji and Govinda and Jhipri B-ii the mother of Rodba, and they continued to live together as a joint Hindu family till 1890. The main evidence of the agreement extinguishing the mortgage is contained in a copy of an application for mutation of names in respect of the share in the village made by Ramji on the 9th February 1882 (Ex. D-3) and a copy of the statements made by him and his mother Ananda Bai before the Tahsildar in the enquiry started by that application (Ex. D-1). In both Ramji's application and deposition the full details of the agreement are stated. In the course of the former he stated that he was his father's heir (waris), and in the latter that his father's heirs were himself and his mother Ananda Bai, who was present with him and affirmed this statement.

(3.) BUT even if Ramji's words can be taken as bearing the meaning put upon them, they are far from being the only evidence on the one question to be decided, which is whether his two younger brothers were or were not parties to the agreement of which ha spoke. On this point the learned District Judge says that it was never the first defendant's case that Ramji was representing the joint family when he deposed before the Tahsildar, and that though he might have raised that plea he never did, and it was then too late to do so.