DINKAR RAOJI SINKAR Vs. ANANT GANESH SAGWEKAR

JUDGEMENT

(1.) This is a second appeal arising out of a suit brought by the present plaintiffs for redemption of the property in suit, defendants Nos. 1 to 7 being the heirs of the mortgagee, defendant No. 8 being a sub-mortgagee, and defendant No. 9 being the original mortgagor who sold the equity of redemption to the plaintiffs. Both the lower Courts have dismissed the suit as barred by res judicata by reason of the decision in suit No. 241 of 1913 brought by the present plaintiffs against the mortgagees, On June 6, 1896, the original mortgagor, defendant No. 9, passed an agreement of sale of the property to the mortgagee, defendant No. 1's father. On February 5, 1913, another agreement of sale was passed by defendant No. 9 in favour of defendant No. 1. The plaintiffs purchased the property from the mortgagor on May 3, 1913, and sued for redemption in the previous suit No. 241 of 1913. It was urged on behalf of the defendants-mortgagees in that suit that the plaintiff No. 1 was a clerk of the defendants and wrote the agreement of 1895 passed by the mortgagor in favour of the mortgagee, and that the sale-deed of May 1918 in favour of the plaintiffs was bogus and hollow, and that they had notice of the agreement of June 6, 1896, in favour of the mortgagee. The Subordinate Judge decided in favour of the plaintiffs, but the decree was set aside on appeal, and after remand he raised additional issues. Issue No. 1 was whether the plaintiffs sale-deed was hollow or fraudulent, and the issues framed after remand related to the contract for the sale of the equity of redemption by the plaintiffs vendor's father in favour of the mortgagee in 1890, and to the question whether the plaintiff's had notice of the contract. The learned Subordinate Judge discussed the whole evidence and found on issue No. 1 that the plaintiffs sale-deed was hollow and fraudulent, and also determined the issues after remand, and recorded a finding in favour of the defendants, and held that the issues framed after the remand must be answered in favour of the defendants and the suit must, therefore, be dismissed, and proceeded to decide the other issues on the ground that it was better to dispose of the other issues by way of caution probably to avoid a remand.

(2.) The disposal of the suit, therefore, by the Subordinate Judge was principally on the ground that the plaintiffs sale-deed was a hollow transaction. The learned Subordinate Judge proceeded to dispose of the other issues in the case, and held that the plaintiffs were not agriculturists and therefore the suit was premature as having been brought before the expiry of the period of redemption. But the decision on this issue and the other issues in the case was, in the opinion of the Subordinate Judge, not necessary as the suit failed on the ground that the plaintiffs sale-deed was hollow and fraudulent, When the case went in appeal, the appellate Court also recorded the findings in the same order, and although the lower Court's findings on issues relating to accounts were found correct, the plaintiffs were held entitled to no relief as on the other issues the plaintiffs suit failed. The appeal was, therefore, dismissed. The second appeal, No. 838 of 1919, was summarily dismissed.

(3.) It is urged on behalf of the appellants that the decision on the point whether the plaintiffs wore agriculturists was sufficient to dispose of the suit and the suit being premature, the other questions were not heard and finally decided, and reliance was placed on the rulings in the case of Midnapur Zamindari Co. V/s. Naresh Narayan Roy (1920) L.R. 48 I.A. 49, s.c. 26 Bom. L.R. 651; Rango V/s. Mudiyeppa (1898) I.L.R. 23 Bom. 296; Abdullakhan V/s. Khanmia (1908) I.L.R. 32 Bom. L.R. 380; Irawa, kom Laxmana Mugali V/s. Satyappa bin Shidappa Mugali (1910) I.L.R. 35 Bom. 38, s.c. 12 Bom. L.R. 766; Daudbhai Allibhai V/s. Daya Rama (1918) I.L.R. 43 Bom. 568, s.c. 21 Bom. L.R. 363 and Bai Nathi V/s. Narsi Dullabh (1919) I.L.R. 44 Bom. 321, s.c. 22 Bom. L.R. 64.