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Supreme Court Of India
DEVIDAS
Versus
Shrishailappa
Decided On : February 21, 1961
PARTITION - MORTGAGE - JOINT HINDU FAMILY - DIVISION OF PROPERTY - MORTGAGEE RIGHT - UNDIVIDED PROPERTY - BURDEN OF PROOF - NON-JOINDER OF PARTIES - LIMITATION ACT, S. 22.
Fact of the Case:
A joint Hindu family consisting of three branches, namely, Rachappa, Shivappa, and Basavanappa, possessed lands, houses, and a moneylending business. In 1929, Basavanappa executed a mortgage deed in favor of Rachappa to secure repayment of a loan. In 1939, the three branches of the family mutually agreed to sever their joint status and divide their properties. The mortgage amount recoverable from Basavanappa and a claim against one Desai were kept joint. In 1947, the sons of Basalingappa, who was the natural brother of Rachappa and was adopted by his uncle Basavanappa, filed a suit for a decree for Rs. 1,23,400 by enforcing the mortgage deed executed by Basavanappa, claiming that the mortgagee right was not divided at the partition.
Finding of the Court:
The trial court held that only a third share in the mortgagee right was purchased at the court auction by Madiman, and passed a decree against the appellants for payment of Rs. 60,933-5-4 and proportionate costs. The High Court remanded the case for recording a finding on the issue of whether the mortgage debt fell to the share of Rachappa at the family partition of July 1939. The trial court recorded a negative finding on that issue, which was confirmed by the High Court.
Issues: 1. Whether the mortgagee right under the deed executed by Basavanappa was kept undivided at the partition. 2. Whether the suit was properly constituted and maintainable in light of the non-joinder of Parvatewa, the step-mother of the plaintiff.
Ratio Decidendi: 1. The court held that the mortgagee right was left undivided at the partition based on the evidence of the plaintiffs, corroborated by the division of the remaining properties movable and immovable. The court rejected the appellants' argument that an adverse inference should have been raised against the plaintiffs for withholding a tippan (memorandum) of the properties prepared at the time of partition, as there was no evidence to show that the tippan was with the plaintiffs or within their power and it was withheld from the court. 2. The court held that the suit was properly constituted and maintainable despite the non-joinder of Parvatewa, as she was not a necessary party to the suit. The court relied on the fact that plaintiff No. 1, who filed the suit, was the manager of the branch of Basavanappa and must be deemed to have filed it as manager of that branch, representing all the members of that branch having an interest in the property.
Final Decision: The appeal was dismissed with costs.
Judgment
SHAH,, J.
( 1 ) THE genealogy which sets out the relationship between some of the principal parties in this litigation is as follows:
( 2 ) MALLAPPA had four sons Balappa, Shivappa, Basavanappa and Chanamalappa. These four sons, formed a joint Hindu family. Chanamalappa separated himself from the joint family sometime in the year 1909 and his other three brothers continued to remain joint. Shivappa was the Manager of the joint family after the death of Mallappa. Shivappa died in 1928. and Rachappa became the Manager of, the family. The joint family possessed lands in seventeen, villages and many houses in Khanapur. The family had also an extensive moneylending business. One Bashettappa Neeli-hereinafter referred to as Bashettappawas married to the sister of Rachappa. On 29/07/1929, Bashettappa executed a deed of simple mortgage in favour of Rachappa in respect of certain parcels of lands and houses belonging to him to secure repayment of Rs. 1,73,000. 00, Rs. 76,700. 00 out of which were received in cash and the balance represented amounts which Rachappa agreed to pay to Bashettappas creditors. To one Gurappa, Bashettappa owed Rs. 8,000. 00 as an unsecured debt and Rachappa agreed to pay that debt. In Insolvency Application No. 22 of 1929 of the file of the First Class Subordinate Judge, Dharwar, Bashettappa was adjudicated an insolvent and receivers were appointed by the Insolvency court to administer his estate. The receivers applied for a declaration that the mortgage deed, in favour of Rachappa was in fraud of creditors and was accordingly void. The Assistant Judge, Dharwar, in Appeal No. 25 of 1934 from the order of the Insolvency court held that Rachappa was entitled out of the mortgage amount to recover Rs. 45,700. 00 as a secured debt and Rs. 31,000. 00 as unsecured debt. Gurappacreditor of Bashettappa-in the meanwhile filed Suit No. 84 of 1932 against Rachappa and other members of his family in the court of the First Class Subordinate -Judge, Dharwar, for a decree for Rs. 8,000. 00 claiming that Rachappa had, acting on behalf of the joint family of which he was the manager, undertaken under the deed of mortgage to pay that amount and. that he-Gurappa-had accepted that undertaking. ; A decree exparte was passed in that suit against Rachappa on 28/02/1933, and the claim against the other members of the family was either withdrawn or rejected. On 23/07/1939, the three branches of the joint family by mutual agreement severed the joint status and properties movables and immovables beloning to the family were divided. Pursuant to this division, lands and houses which fell to the shares of the three branches were mutated in the Revenue and Municipal records in the names of the managers of the respective branches. Movables were also divided. The mortgage amount recoverable from Bashettappa and a claim against one Desai were it is the case of the plaintiff in the suit out of which this appeal Arises, kept joint. Gurappa after making certain infructuous attempts to execute the decree filed dharkhast No. 176 of 1940 to recover Rs. 11,061-6-9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated 29/07/1929. One Ganpatrao N. Madiman-hereinafter referred to as Madimanoffered the highest bid at the court auction and the mortgage bond was sold to him for Rs. 20,000. 00 An application filed by Rachppa for setting aside the sale pleading that the sale was vitiated by material irregularities and fraud in publishing and conducting the sale was rejected.
( 3 ) THE mortgage bond was delivered by the executing court to Madiman and orders were issued against Bashettappa and the receivers of his estate prohibiting them from making payments of the dues under the mortgage or any interest thereon, to any person or personal except the purchaser Madiman. In Miscellaneous Application No. 57 of 1944, Madiman applied, to the Insolvency court to be recognised as an unsecured creditor for Rs. 31,0
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