MAHADEO KUNBI Vs. BABYA

JUDGEMENT

(1.) . 1. The material "facts of the case giving rise to this second appeal are not disputed. One Bapuji Kunbi owned sub-division No. 3 of the field S. No. 666 situated in Mauza Mangruli, Tahsil Morsi in the Amraoti District. On 10th May 1915, he executed a mortgage (vide Ex. P. 4 its copy) by conditional sale for Rs.200 in respect of the said land, in favour of Krishnaji deceased father of defendants 1 and 2 Balya and Eajaram. On the same date he executed a will in favour of the plaintiff's father Piraji his nephew. By the said will he bequeathed, the aforesaid) land to the latter, who was to be its. owner after the deaths of the testator and his wife. Bapuji died in September 1915 while Piraji died in 1919. In 1921, defendant 2 one of the two sons and heirs of the mortgagee Krishnaji (who died in the year 1916) brought a suit upon the aforesaid mortgage against Bapuji's widow Mt. Bhiwari, obtained a foreclosure decree against her and took possession of the mortgaged property about 20th January 1922. The plaintiff Mahadeo son of the deceased legatee Piraji was not impleaded as a defendant in the mortgage suit. He has. now instituted the suit leading to this appeal for redemption of the aforesaid mortgage. The Sub-Judge who1 tried this suit dismissed it on the strength of the finding that neither Piraji, nor the plaintiff acquired any interest in the land in suit, by virtue of the will, as Piragi died before Mt. Bhiwari, and that Mt. Bhiwari fully represented the estate in the previous mortgage suit. On an appeal being preferred by the plaintiff, the Additional District Judge who heard it, confirmed the decree of the Court of first instance, holding that Mt. Bhiwari fully represented the estate in the mortgage suit, and that the plaintiff had absolutely no right to redeem the mortgage, his interest in the property being similar to "that of a reversionary heir under Hindu Law.

(2.) THE plaintiff has now preferred this second appeal, and both the adverse findings recorded by the lower appellate Court are assailed by him in this Court. It is contended on the appellant's behalf, that the plaintiff, who claims in the present suit as the son of the legatee under Bapuji's will, and not as a reversionary heir under Hindu Law, has a vested interest in the property in suit, and that consequeutly he is entitled to redeem the mortgage in question, as a person falling under Clause (a) or Clause (b), Section 91, T. P. Act; while, on the other hand, it is argued for the respondents that the position of the plaintiff's father, Piraji under the will is not better than that of a reversionary heir under Hindu Law, that, as a person having a mere chance of succession, he cannot claim to possess the interest contemplated by either of the two Cls. (a) and (b), Section 91, of the aforesaid Act, and that the plaintiff has consequently no right to redeem the property in question. On giving due consideration to the arguments addressed by the learned counsel of the contending iparties, it seems to me that the interest jclaimed by the plaintiff on the strength jof the will stands on a much higher footing than that of a reversionary heir, that this case falls under either Clause (a) or Clause (b), Section 91, T. P. Act, and that, therefore, he would be entitled to claim the right to redeem the property in suit, provided his claim is not otherwise barred. It is an undisputed fact that the legatee Piraji survived the testator Bapuji. It follows from this fact that on the latter's death the former got a vested interest in the property bequeathed to him and that such an interest was transmissible to his heirs and assignees. It did not lack in certainty and cannot consequently be called a contingent or uncertain interest which may or may not have any legal operation. Looked at from this standpoint, the legatee's interest which the plaintiff inherited from his father Piragi stands on a much higher footing than the uncertain and contingent interest of a reversionary heir having a mere chance of succession, and which is in view of Clause (a), Section 6, T.P. Act not a fit subject of legal transfer. The very fact of the character of the former as a vested interest differentiates it from the latter. It has been affirmed in Bilaso v. Munni Lal [1911] 38 All. 558 that a legatee who has to get the devised property after the deaths of the testator, and his wife, and who survives the testato has after the testator's death a vested interest in the property which is transmissible to his son.

(3.) I am, therefore, unable to accept the reasoning adopted by the learned Judges who decided the case of Ram Chandar v. Kallu [1908] 30 AH. 497 for holding that a reversionary heir is not entitled during the lifetime of the widow to redeem a mortgage made by the husband. Irrespective of the question of owning a present right to possession the person falling under any of the seven clauses of Section 91 is entitled to institute a suit for redemption, and it has been already observed that the plaintiff is a person falling under either Clause (a) or Clause (b) of the said section, and is as such entitled to redeem a mortgage made by the testator. As an abstract proposition of law, this conclusion is quite correct, but it cannot for reasons to be stated hereafter, be availed of by the appellant under the peculiar circumstances of the present case.