S.N.VARIAVA, V.N.KHARE
Dilboo – Appellant
Versus
Dhanraji (Dead) – Respondent
Key Points: - The suit for redemption can be governed by 60 years, but if interest in excess of the mortgagee's right is created, the suit against third parties must be filed within 12 years of the transfer becoming known to the plaintiff. (!) (!) (!) - Article 134 applies to such transactions involving transfers by mortgagee for valuable consideration, omitting bona-fide; deemed knowledge upon registration dates; burden on plaintiff to prove timely filing and knowledge. (!) (!) (!) - High Court erred in re-appreciating facts and considering documents to prove heirs of Lakshamania; proper standard is that predecessors' relationship is a question of fact and must be proven; mere documentary statements without witnesses are insufficient. (!) (!) (!) - The Supreme Court set aside the High Court ruling, holding limitations issues against the Respondent, including time-bar for transfers (1942, 1948) and knowledge dated from registration or due diligence. (!) (!) (!) - The appellate court held that sale transfers created interests in excess of the mortgagee and thus limited their effect under Article 134; the appeal allowed and suit dismissed. (!) (!)
JUDGMENT
S.N. Variava, J.-This Appeal is against an Order dated 13th July 1982 in a Second Appeal No. 2100 of 1973 wherein the High Court has proceeded to appreciate evidence and on questions, purely of fact, overruled concurrent findings of facts by two Courts below. Cross objections have been filed by the 1st Respondent against directions in the impugned Judgment to have ascertained, amongst others, the state of the different parts or portions of the suit property and improvements made therein and their value.
2. Briefly stated the facts are as follows :
On 30th August 1902 Smt. Lakshamania widow of Narayan Sonar mortgaged two houses and twenty trees in favour of Ram Charan Sonar. The mortgage was for a sum of Rs. 499/-. It is claimed by the Appellants that Ram Charan Sonar and his brother Swaroop Sonar were already staying in the suit property with Narayan Sonar. The said Smt. Lakshamania died on 3rd November, 1908.
3. One Smt. Piyari, claiming to be the nearest heir of the husband of Smt. Laxmina, filed Suit No. 328 of 1908 and made a claim to the suit property. This Suit was dismissed on the ground that Smt. Piyari was not an heir of Shri Narayan or of Smt. Lakshamania.
4. One Shr
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