DADA VAKU NIKAM Vs. BAHIRU HINGU NIKAM

JUDGEMENT

(1.) These two appeals are brought from the decisions of the lower Courts in two suits for redemption. In the first suit, No. 381 of 1923, the plaintiff sought to redeem 33 gunthas of land in Revision Survey No. 242. In the second suit, No 382 of 1923, he sought for redemption of the whole of Revision Survey No. 95. The decision of the Court of first instance was that the plaintiff was entitled to redeem both these properties, but as the amount, on taking the accounts under the Dekkhan Agriculturists Relief Act, had been fully paid off, he could redeem without further payment. The District Judge in appeal took a different view. He held that by virtue of an arrangement made in the year 1910 the plaintiff was not entitled to redeem.

(2.) The nature of the transactions between the parties has been fully set out by the learned District Judge. It appears (putting the matter briefly) that there was in 1896 a document which both the Courts have found to be a mortgage, though it is expressed to be a sale-deed, by which the mortgagor mortgaged to the mortgagee a part of Revision Survey No. 242 and a part of Revision Survey No. 252. Following upon that, there was in the year 1900 a further mortgage between the same parties, whereby the mortgagor mortgaged Revision Survey No. 223 and Revision Survey No. 95. At the date of the arrangement of 1910, as found by the lower appellate Court, the mortgagor was in possession of these four properties. On May 25, 1910, a document was executed which is in terms a sale-deed whereby the mortgagor purports to convey to the mortgagee a portion of Survey No. 223 and a portion of Survey No. 252. On the face of the documents the position would be that the mortgagee thus became the full owner of Survey Nos. 223 and 252, while the remaining properties which are the subject of the present suits for redemption remained as security for the mortgage debt.

(3.) The learned District Judge held that though that was the apparent nature of these documents, there was an arrangement between the parties whereby the mortgages as regards the properties now sought to be redeemed must be taken to have been settled. He arrived at that conclusion from a consideration of the evidence in the case and from the change in the position of the parties after the date of that transaction. He points out that after that date the mortgagee entered into possession, and the mortgagor relinquished the possession which he had as regards the properties now in dispute. From that he deduced, as also from the oral evidence in the case, the arrangement which he has held proved.