GANU RAMJI PATIL Vs. BHAU BAPUJI PATIL

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly these : Bala and Ganu, who were originally natural brothers, and became first cousins in consequence of Ganu s adoption by their uncle, and each of whom was entitled to a moiety of certain property, purported to sell the property to one Shankar in 1892. On the 18th of August 1898, Shankar purported to convey some of these lands for 11s. 100 to Bhau Patil who is defendant No. 1. On the 17th of September 1904, Shankar conveyed certain other properties for Rs. 161 to defendant No. 1. The properties conveyed in 1898 have been described before us as roughly representing the moiety owned by Ganu and the properties conveyed in 1904 by Shankar as representing the moiety owned by Bala.

(2.) The present suit was brought by Ganu to have it declared that the plaint properties, that is, the properties first conveyed, or mortgaged by Bala and Ganu to Shankar, belonged to and were in possession of the plaintiff. The defendants, Bhau Patil and his two brothers, are the sons of the plaintiff s sister. They pleaded that the properties were conveyed absolutely to Shankar in 1892 and subsequently by Shankar to Bhau in 1898 and 1904 as stated above. The plaintiff s case in substance was that the first conveyance in favour of Shankar was really a mortgage, and that the subsequent conveyances in favour of Bhau by Shankar were the result of an arrangement between Bhau, Shankar, Ganu and Bala to the effect that Shankar was to be paid the dues under the mortgage of 1892, and that the defendant Bhau was to have the properties conveyed to him on the understanding that they would be reconveyed to Ganu and Bala, when the latter would pay the sums paid by Bhau to Shankar in 1898 and 1904.

(3.) The trial Court came to the conclusion that the original transaction with Shankar was a mortgage, and that in 1898 and 1904 the properties were convoyed by Shankar on his being paid Rs. 100 and Rs. 161 by Bhau with the full knowledge of the fact that Shankar was only a mortgagee and not the owner thereof and with the understanding that Bhau was to hold the properties subject to the liability to reconvey the same to Ganu and Bala on their paying him the sums paid by him to Shankar. The trial Court passed a decree in favour of the plaintiff on the basis of his being entitled to a moiety of the properties, conveyed in 1892 to Shankar and of his being liable to pay Es. 130-8-0 with interest to the defendants.