CHANDIKAPRASAD DEVIPRASAD AGNIHOTRI Vs. SHIVAPPA SHIDDAPPA DAVALANAVAR

JUDGEMENT

(1.) A new point has been taken in this Court that it should have been held that the plaintiffs suit for redemption, which was brought under the Dekkhan Agriculturists Relief Act, is not competent. This is based upon the decision of the Privy Council in Mt, Bachi V/s. Biekchand (1910) Bom. L.R. 56 p.c. The point was not allowed by Macleod C.J., who summarily dismissed the appeal; but a further appeal under the Letters Patent has been admitted in this Court, and the point has now been fully argued before this Bench.

(2.) There is no doubt that the suit as brought is one for redemption of a mortgage bond of 1902. It refers to the subsequent sale-deed by the plaintiffs uncle Basappa, defendant No. 7, and says that that sale-deed has effect only so far as the defendant No. 7's share is concerned, and that the plaintiffs were entitled to redeem the other half of the mortgage property. The plaintiffs finally pray for an account to be taken under the Dekkhan Agriculturists Relief Act to ascertain what amount, if any, is due to the defendants Nos. 1 to 4 in respect of the said mortgage, and that if any amount was found due to the defendants it should be made payable by easy instalments, and that possession of the lands should be awarded to the plaintiff after partition. It is a suit brought as a suit for redemption with prayers that can only be granted under the special provisions of the Dekkhan Agriculturists Relief Act; and we do not think that the case can be distinguished from that which was before the Privy Council in Mt. Baohi V/s. Biolechand. So far as the alienation of defendant No. 7 stands in the way of the plaintiffs, the suit was not; a mere suit for redemption; and the special jurisdiction, that the Subordinate Judge could only exercise under the Dekkhan Agriculturists Relief Act, if it was a mere suit for redemption, did not therefore exist Both the lower Courts have held that the sale-deed was executed by defendant No. 7 as manager of a joint Hindu family of which the plaintiffs were members, and that cuts away the attempt which has been made to show that the sale-deed can be absolutely ignored by the plaintiffs.

(3.) Primarily, therefore, this objection does, in our opinion, succeed. But we have been asked by Mr. Parnlekar to allow the suit to be treated as one brought in the ordinary way, without any reference to the special provisions of the Dekkhan Agriculturists Relief Act, for setting aside the sale-deed by defendant No. 7, so far as it purports to transfer any interest that the plaintiffs had in the suit property, and for redemption of the mortgage of 1002, upon the terms of the mortgage deed itself, supplemented by provisions of law such as are contained in the Transfer of Property Act.