Nani Bai vs Gita Bai Kom Rama Gunge

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1958 Supreme(SC) 54

SUPREME COURT OF INDIA
14th April, 1958.
B.P. SINHA, JAFER IMAM AND K. SUBBA RAO, JJ.
Nani Bai, Appellant
Versus
Gita Bai Kom Rama Gunge, Respondent.
Civil Appeal No. 177 of 1954.
Advocates appeared
Mr. L. K. Jha, Senior Advocate, M/s. Rameshwar Nath, J. B. Dadachanji and S. N. Andley, Advocates of M/s. Rajinder Narain and Co., Advocates, for Appellant; M/s. K. R. Bengeri and K. R. Chaudhari, Advocates, for Respondent.

Advocates:
C.K.BENGERI, J.B.DADACHAN, K.R.BENGERI, K.R.CHAUDHARY, L.K.JHA, RAMESHWAR NATH ROY, S.N.ANDLEY

Headnote:execution against wrong person as representative — same will have no effect - clause (b) contemplates a transfer by the mortgagees in excess of his interest — the law treats the possession of such a transferee as wrongful and therefore adverse to the mortgagor if he is aware of the transaction = in order to attract operation of articles 92 and 61 the defendant has got affirmatively to prove that the mortgagee or his successor-in-interest has transferred a larger interest than justified by the mortgage — in absence of such proof shorter period provided by the provisions of these articles is not available to the defendants in a suit for possession after redemption - severance of joint status by way of partition in the mitakshara sense where there is no division of property by metes and bounds — not compulsorily registrable under section 17 and therefore not come within the mischief of section 49 - ALL LEGAL REPRESENTATIVES OF DECEASED BROUGHT ON RECORD
-requirements of this rule are satisfied. If subsequently some of the heirs thus substituted are not served, the question is not an abatement of suit or appeal but as to whether suit or appeal is competent in the absence of those persons—

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

The suit involves a dispute over the redemption of mortgaged properties and the validity of transfers made by the mortgagee or its successors-in-interest. The law considers wrongful possession of transferees who have transferred interest beyond their entitlement as adverse to the mortgagor, and the burden of proof lies on the defendant to establish that the transfer was within their legal interest (!) .
The court clarified that the jurisdiction of the special tribunal under the relevant state protection act extends to transactions prior to 1915, but it does not limit the court’s authority to grant relief in cases involving earlier transactions, provided no specific limitation is enacted in the statute (!) .
The suit was not barred by limitation under the relevant articles of the Limitation Act because the sale and transfer of interest did not affect the plaintiff’s inheritance or rights, and the sale proceedings did not bind her as she was not a party to those proceedings (!) .
The court emphasized that the shorter limitation period applies only if the defendant proves that the transfer was in excess of the mortgagee’s interest, which they failed to do. Absent such proof, the longer limitation period (e.g., 60 years) remains applicable (!) .
The question of legal representation and proper parties was addressed, with the court ruling that the suit was properly constituted despite some heirs not being served, as they were not necessary parties to the specific property in question or did not have a subsisting interest (!) .
The documents alleged to be partition deeds from 1892 are inadmissible as evidence of an actual partition by metes and bounds because they are unregistered. However, they are relevant for establishing the intention of the parties and the separation in estate, which affects the rights of the parties (!) (!) .
The court clarified that a mere declaration of interest or separation in estate, without specific division of property, does not constitute a partition under the registration law, and such documents are not compulsorily registerable but can be used to show the nature of the relationship and estate status (!) .
The court held that the entire ancestral estate, including mortgaged properties, was mortgaged jointly, and the plaintiff’s claim to a specific share was consistent with this. The sale of her father’s share did not affect her right to redeem the other share, which was still in the estate’s possession (!) .
The appeal was partly allowed, with the decree for possession after redemption being confined to the share of the estate that belonged to the plaintiff’s father, and the parties were directed to bear their own costs (!) .
The procedural requirements concerning substitution of heirs and service of parties were satisfied, and the suit was deemed competent despite some heirs not being served, as they were not necessary parties for the specific issues involved (!) .

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Judgment

B. P. SINHA, J.: This is a defendants appeal by leave granted by the High Court of Judicature at Bombay, from the decision of that Court, dated 9th October 1950, in two cross-appeals from the decision of the Special Judge of the Special Tribunal Court at Mangalvedhe, dated 31st July 1946, in Special Suit No. 1322 of 1938. Of the two cross-appeals, the First Appeal No. 361 of 1948, by the appellants, was dismissed, and the First Appeal No. 363 of 1948, by the plaintiff, was allowed. The plaintiff-respondent had instituted another suit, being Suit No. 1894 of 1937, which was also tried along with Special Suit No. 1322 of 1938. The former suit stands dismissed as a result of the judgment of the High Court, and no appeal has been brought against that judgment to this Court.

2. The suit out of which this appeal arises (Special Suit No. 1322 of 1938), was instituted under the provisions of the Sangli State Agriculturists Protection Act, granting certain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called "British India" The suit as originally framed, prayed for accounts in respect of two mortgages, though there were really three mortgages, to be described in detail hereinafter, and for possession of the lands comprised in those mortgages. Defendant 1 filed his written statement on 6th January 1940, contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened; that the mortgaged properties had been sold at auction and purchased by the defendant s father who, thus, became the full owner thereof; and that he had sold most of the properties to other persons who were holding those properties as full owners. Defendant 3 who also represents the original mortgagee, filed a separate written statement supporting defendant 1. Of the defendants who are transferees from the original mortgagees or their heirs, only defendant 8 filed his written statement on 26th March 1940, substantially supporting defendant 1 s written statement and adding that he had purchased the bulk of the mortgaged properties after acquisition of full title by the mortgagees themselves more than 12 years before the institution of the suit, and that, therefore, it was barred by limitation.

3. The trial Court dismissed the suit by its judgment dated 26th November 1941, with costs. On appeal by the defeated plaintiff, the Special Bench of the High Court of Sangli State, by its judgment dated 13th June 1944, remanded the suit for a fresh trial after having permitted the plaintiff to amend the plaint so as to include the relief for redemption. It appears that during the pendency of the suit after remand, an application was made in February, 1945, for making substitution in place of defendant 2 who had died meanwhile, but the application was refused by the Court on the ground that the suit had abated as against that defendant. After re-framing the issues and re-hearing the case, the trial Court, by its judgment and decree dated 31st July 1946, dismissed the suit as against defendants 6 to 9 who were holding portions of the mortgaged properties by sale-deeds of the years 1919 and 1922, for more than 12 years, as barred by limitation under Art. 134, Limitation Act. The Court decreed the suit in respect of the mortgaged portion of R. S. No. 1735, having an area of 16 acres and 21 gunthas, as against defendant 3, and R. S. No. 334 against defendant 1 s heirs. Each party was directed to bear its own costs throughout. From that decision, the defendants preferred a first appeal, being First Appeal No. 361 of 1948, and the plaintiff filed a cross-appeal, being First Appeal No. 363 of 1948, in the High Court of Judicature at Bombay . Both the appeals were heard together along with two other cross-appeals arising out of the other suit mentioned above. The High Court, by its judgment and decree dated 9th October 1950, dismissed the defendants appeal No.

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