Judgment

S.R. DAS, CJI. : This appeal by special leave has arisen out of Original Suit No. 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shiddappa Borgavi alias Teli (since deceased) as his son Mallappa Tukaram Borgavi alias Teli (1st respondent herein) against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs. The mortgaged property consists of R. S. No. 307 which is Devasthan Inam lands burdened with the obligation to supply oil for Nand Deep, i.e., keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani. The said property originally belonged to two brothers Shiddappa and Annappa. The khata of the land, however, stood in the name of Shiddappa as the registered occupant under S. 74 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879).

2. The facts material for our present purpose may now be stated. On January 23, 1888, Shiddappa and Annappa executed a unufructuary mortgage (Ex. D-51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs. 1,300 made up of Rs. 1,100 due under a previous mortgage and Rs. 200 presently advanced in cash. That deed provided that the mortgage money would be repaid with a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said outgoings, the mortgagees would incur the said expenses and add the same to their claim on the mortgage. On March 10, 1900, Shiddappa alone executed a simple mortgage (Ex. D-52) for Rs. 600 in favour of the same mortgagees. A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them. This simple mortgage deed provided that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account. On March 22, 1900, before the simple mortgage deed was presented for registration, Shiddappa, who was the registered occupant, gave a Rajinama under S. 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the abovementioned khata of R. S. No. 307 from the end of the then current year. On the same day, the mortgagees by a Kabuliyat prayed that the occupancy in the mortgage property may be granted to them. Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 5, 1900. Siddappa haveing died, Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name. This application was rejected. In 1907 Shiddappa s sons Tukaram (the original first plantiff herein) and Annappa, the brother of Shiddappa filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists Relief Act. That suit having been dismissed, they appealed to the District Court, Belgaum, but that appeal was dismissed on March 15, 1909. Annappa again applied for the lands being put in his possession, but that application also was rejected on August 4, 1910. Thereafter, in 1911 Annappa and Tukaram, the brother and son respectively of Shiddappa, filed C. S. No. 362 of 1911 under the same Deccan Agriculturist s Relief Act for the same reliefs. That suit was also dismissed and the appeal therefrom met with a like fate on March 17, 1914. In 1922 Annappa died without any issue. The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities. On November, 1, 1937, Tukaram and his son Ganpat, alleging that they were the legal representatives of both Shiddappa and Annappa, filed Original Suit No. 586 of 1937, out of which this appeal arises, against the appellants Lilachand and his three sons for the r