GANGABAI Vs. BASVANT BALLAPPA

JUDGEMENT

(1.) The contest in this appeal is between the representatives of a mortgagee and the heir of a mortgagor.

(2.) The mortgage in question was of certain Deshgat vatan property effected in the year 1850 between the holder of the vatan, who was the father of the defendants, and the person under whom the plaintiffs claim. The property mortgaged is described usamchi khasgat deshgati paiki jamin (land out of our private deshgat or property attached to our hereditary office). The mortgage being ostensibly of land attached to an hereditary office was under the rule enunciated in Kalu Narayan Kulkarni V/s. Hanmappa bin Bhimappa (1879) I.L.R. 5 Bom. 435, approved of by the Privy Council in Padapa V/s. Swamirao (1900) I.L.R. 24 Bom. 556, 561, in its inception void against the heir of the mortgagor by reason of the provisions of Regulation XVI of 1827.

(3.) It is contended, however, on behalf of the mortgagee's representatives that by reason of a certain settlement effected between Government and the mortgagor subsequent to the year 1861, the estate of the was enlarged into an estate similar to that of any owner of private property and that therefore the mortgagee's representatives are entitled to claim to hold the mortgaged property under the mortgage against the heir of the mortgagor. It is argued that the settlement, which is evidenced by an application in the year 1862, a Government Resolution in the year 1890, and a sanad in the year 1894 issued subsequent to the death of the mortgagor, had the effect of converting the property into his absolute estate.