RAMAPPA SHAMNAJI SHINDE Vs. YELLAPPA BALAJI VAGMODE

JUDGEMENT

(1.) The plaintiff appellant, purchaser from the heirs of the mortgagor, sued to redeem from the defendants-respondents a mortgage of 1876. The respondents relied on an agreement to sell passed by two out of the three brothers and joint coparceners, heirs of the mortgagor, and claimed Rs. 500 for improvements, in case redemption was allowed. Both the lower Courts allowed redemption only in respect of the one-third share appertaining to the third brother who was not a party to the agreement to sell and rejected the respondents claim for Rs. 500 for improvements for redemption of the whole, The plaintiff appeals. The defendants have filed cross-objections for improvements.

(2.) It is argued for the appellant that the agreement by the two brothers being to sell not their respective shares but the entire property, they could not convey even their own shares and that possession having already been with the respondents as mortgagees, the doctrine of part performance has no application. It is pointed out that ill. (2) to Clause (c) of Section 27 of the Specific Relief Act refers to a contract to sell a share and not the entire property, and by joint tenants not by coparceners. In regard to the claim for improvements, it is argued that to spend Rs. 500 on property mortgaged for Rs. 100 is in fact to improve it beyond redemption and that the Courts have consistently declined to allow the mortgagee the cost of such improvements.

(3.) The respondents rely on the doctrine of part performance and the consistent series of decisions of this Court from the Full Bench case of Bapu Apaji v. Kashinath Sadoba (1916) I.L.R. 41 Bom. 438, s. c. 19 Bom. L.R. 100, f. b. w. With regard to improvements reliance is placed on Section 51 of the Transfer of Property Act.