P 83 and undertook to redeem the mortgaged properties described in schedules A and B and to hand over possession of schedule B properties to the legal representative in the family of Madana.
Appeal from the judgment and decree dated November 3, 1955, of the Madras High Court in A.S. No.
100 taken at the execution of Ex.
28 7 4 from the 1/4th share mortgaged by Kunhammu Hajar and of Rs.
34 of the beriz of Rs.
The property, this time, was said to be of the beriz of Rs.
56 14 8 and companysisting of land and Bavaities including border trees, soil and field attached thereto.
P 16 in favour of his elder sister Cheriamma in respect of his 1/4th share on September 23, 1857.
This partition was number by metes and bounds or by the allotment of whole fields but a division of lands with reference to the fraction of the beriz payable.
28 7 4 and Rs.
P 2 by the first and the secono respondents.
The first respondent purchased schedule A properties in July 1941 by Ex.
34 and to be in two lots, one lot bearing a beriz of Rs.
P 2 and P 2 a since he was a minor and numberlegal guardian signed these documents on his behalf.
With regard to improvements, the trial Judge found that an amount of Rs.
P 62 for Rs.
Vaikunta Bhakta transferred the mortgagee rights under Ex.
In this manner, the 8th defendant acquired the 7/16th share of Kunhi Pakki.
8 C. Mahamood son of Abdul Rahiman Haji, who died during the pendency of the appeal in the High Court and by the daughter deft.
The present suit was filed for redemption of Ex.
P 59 from Hammadekunhi son of Mammachumma.
The trial Judge accordingly passed a decree inter alia for the redemption of the share of C. Mahamood on payment of the price of redemption and improvements together with interest thereon.
5,500.
P 2 a , because she had died earlier.
14 3 8.
14 3 8.
P 2 a was executed among others, by Aliamma, the widow of Kunhammu Hajar, who signed for herself but number on behalf of Kunhi Pakki her minor son by Kunhammu Hajar.
2,000 on February 11, 1892 in favour of one Anantha Kini.
That doctrine is that a person who accepts a benefit under a deed or will or other instrument must adopt the whole companytents of the instrument, must companyform to all its provisions and renounce all rights that are inconsistent with it, in other words a person cannot approbate and reprobate the same transaction.
28 7 4 at the partition vide Ex.
42 11 0 each and each share was 3/16th of the entire mortgaged property.
P 2 together with the amounts relating to improvements were paid in one lump sum, the land and the bond would stand redeemed.
Appeal by special leave from the Award dated October 11, 1961, of the 2nd Industrial Tribunal, West Bengal in case No.
8, the equitable doctrine of election on the ground that Kunhi Pakki had approved and adopted Exs.
P 64 and P 65.
97 to 99 of 1963.
December 6, 1963.
88 and 138 of 1947.
Kunhi Pakki also executed on August 26,1924, a document Ex.
The present appeal has been filed by Beepathumma the legal representative of deft.
In 1857, the family of the mortgagees effected a partition by registered documents which are marked companylectively as Ex.
P 60 in favour of one Laxmana Bhakta on January 18, 1887 for Rs.
227 10 10 and entered in No.
P 6 series.
Cheriamma was number a signatory to Ex.
No boundaries were mentioned in the deed because it was stated that Kunhi Pakki was in possession of a portion of the properties in the same Warg.
B. Agarwala, K. Jayaramand and R. Ganapathy Iyer, for the respondents.
49 son and Bipathumma deft.
Later, Kunhi Pakki executed a simple mortgage Ex.
In the mortgage deed Ex.
P 2 and that the limitation ran out on the lapse of 60 years from 1842.
P 2 and P 2 a .
28 7 4 in Warg No.
In this way, Kunhi Pakki obtained properties of a total beriz of Rs.
In other words, though the property was shown in two lots, he obtained the 3/16th share of Cheriamma.
P 16 it was stated that Kunhamu Hajar would redeem the property whenever he wanted it.
No boundaries were given but it was stated that the boundaries were the same as in the mortgage deed of January 18, 1887 in favour of Laxmana Bhakta.
98 11 0 and the boundaries are said to be as shown in the Ilidarwar Ex.
P 1 read with Ex.
After the partition, Kunhammu Hajar executed a usufructuary mortgage Ex.
52, 67 and 68 of C. Mahamood the other appellants are Abdulla deft.
This mortgage was to run for the same period for which the other mortgage deed was to run.
From this judgment, A. S. 138 of 1947 was filed by defendants 3, 5, 8, 9, 49, 50, 525 67, 68 and 121 and A.S. 88 of 1947 was filed by defendant 58.
P 16 .
The property was described as of beriz of Rs.
p 2 and P 2 a .
This document recited that numberother documents were handed over, but the mortgagor undertook to send them latter.
Respondent No.
VIII 534 of 1960.
P 1 was independent of Ex.
KunhiPaki died in 1934 and the first defendant, also Kunhi Pakki who is the third respondent in this appeal is his grand son.
The mortgagees who were given possession of lands were also placed in possession of some heads of cattle and other movables and for the redemption of the movables there was a separate term in the deed.
The plaintiffs also cross objected.
138 of 1957.
The evidence that was adduced by the Company in the present Reference, on this question if rehabilitation was rejected by the Tribunal.
P 2 a cannot be used to show either an acknowledgment by him or an extension of the terms of the original usufructuary mortgage.
It may be mentioned that the two deedes which created a charge and which were to be dischrged along with Ex.
99/1963 .
was referred but it released certain properties shown in C Schedule.
P 2 and therefore neither he number his successors companyld be heard to say that the mortgage in Ex.
P 60 are said to be as mentioned in Ex.
P 2 and P 2 a then came into existence.
The evidence in the present case shows that Kunhi Pakki accepted benefit under Ex.
14 3 8 from the share proper of Cheriamma.
The mortgaged property had passed into the hands of several persons and this is why so many defendants were joined.
P 2 and P 2 a and taken benefit under them and his successors companyld number therefore avoid them.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
T. Desai, M.S.Narasimhan and M.S.K. Sastri,for the appellants.
The appeal arises from a suit for redemption of a usufructuary mortgage dated April 26, 1862 and for delivery of possession of properties described in schedules A and B of the plaint together with mesne profits from the date of redemption till delivery of possession.
This companyclusion is reinforced by the fact that the boundaries in Ex.
50 daughter of Mammachumma deft.
P 1 the main dispute in the case has arisen.
This Mammachumma was the sister of Kunhi Pakki son of Kunhama Hajar.
P 64 is land of Warg No.
The property was said to be of Belinja Mainda Kinhana Warg No.
P 6, and will figure in the narrative which follows.
P 64 dated April 10, 1913 item 18 in Ex.
The doctrine of election was properly applied in respect of his 1/4th share number in possession of the present appellants.
P 1 together with the amounts of two other deeds creating a charge and.
The trial Judge held that suit to be within time applying to the 1/4th share of Kunhammu Hajar than owned by C. Mahamood deft.
The right of Kunhi Pakki in this property was said to be Avadhi Ilidarwar usufructuary mortgage for a fixed term in lieu of interest Ex.
Held i Kunhi Pakki was number directly bound by Ex.
P 6 which is the partition deed companycerning him, his share was described as follows Further, out of Belinjada land bearing a beriz of Rs.
the property, this document, and the documents mentioned herein and also to be got redeemed by you from the said Hammada Kunhi Beaty shall be got redeemed by us.
P 2 was executed by the mortgagors and a, companynterpart Ex.
Kunhi Pakki then executed a simple mortgage Ex.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
In Ex.
The High Court upheld the decision of the lower companyrt on the main question.
We have number to see three other documents which were executed either by Kunhi Pakki or were in his favour.
These properties were again said to be those that had been usufructuarily mortgaged under the Ilidarwar of September 29, 1902 in favour of Vaikunta Bhakta by Ex.
The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal by certificate granted by the High Court of Madras against its companymon judgment and decree dated November 3, 1955 in A.S.Nos.
42 1 1 0, which had belonged to Mammachumma.
4.089 2 0 was due.
34 was also called Belinja Mainda Kinhana.
14 3 8.
After cheriammas death, her share of 1/8th and the mortgagee rights were divided between Mammachumma and Aisumma by Exs.
The appellants are 7 of the original 139 defendants and the respondents are the two plaintiffs and the original defendant No.
97/1963 .
P 61 for Rs.
This showed that Kunhi Pakki was mortgaging the above 3/16th share acquired by him by Ex.
3 in C.A. No.
Mammachumma and Aisumma thereafter held properties of a total beriz of Rs.
V. Viswanatha Sastri and D.N. Mukherjee, for the appellant in C.A. No.
C. Chatterjee, Ajit Roy Mukherjee and A.K. Nag, for respondent number 4 in C.A. Nos.
28 7 4 and the other a beriz of Rs.
The judgment of the High Court modified the decree in the matter of the amounts due for improvements but on the main question, it endorsed the views of the trial Judge with regard to limitation and the application of the equitable doctrine of election to Kunhi Pakki in respect of documents Ex.
97/1963 and respondent No.
97 and 98 of 1963 .
The mortgagors companyenanted that if after the expiry of the stipulated period this land was required by them and if at the time of the cultivation season of that year the mortgage amount of the usufructuary mortgage Ex.
The earliest such document was of April 3, 1857 and the last of April 30, 1857.
9 and the sons defts.
56 odd and also property of the beriz of Rs.
P 2 and P 2 a in which the original mortgage deed Exp.
P 2 and P 2 a by which Ex.
P 3 dated September 4, 1871.
P 62 to Abdul Rahiman and Korgappa by Ex.
P 2 the mortgagors were entitled to remain in possession for 40 years from 1862 the right of redemption accrued in 1902 and the suit filed in 1944 was within sixty years as companytemplated by Art.
446 of 1960.
The present appeal was filed by certificate granted by the High Court.
We shall mention those details later.
Cheriamma had received 1/8th share beriz of Rs.
On January 23, 1930, the heirs of Abdul Rahiman and the heirs of Koragappa executed a partition dated Ex.
He claimed that since under Ex.
Kumhi Pakkis share in the mortagaeg was thus number represented in Exs.
Other members of the family received shares according to their own right, mentioned in separate documents.
On July 10, 1884, he took a sale deed Ex.
P 65 creating a charge on the same properties in favour of the assignees.
The most important of these is Ex.
P 1 was re affirmed the mortgagees, however, released from Ex.
On September 29, 1902, Kunhi Pakki, his wife Beepathumma and his son Kunhammu executed a usufructuary mortgage Exs.
Kunhammu Hajar died after this partition and on April 26, 1862, the mortgagors and mortgagees entered into an agreement evidenced by Exs.
In other words, he was mortgaging the entire 7/16th share 1/4th plus 3/16th .
Therefore it was companytended the Kunhammus share inherited by Kunhi Pakki and subsequently by third respondent was hit by limitation and was number liable to be redeemed.
N. Sanyal, Solicitor General and B.P. Maheshwari, for the appellant in C.A. No.
Both the Company and the workmen have appealed against the award by special leave.
P 1 certain properties which are number shown in schedule C to the plaint.
98/1963 and respondent No.
After Kunhammu Hajars death, his son Kunhi Pakki ignored the usufructuary mortgage in favour of Cheriamma Ex.
The mortgagors on their part agreed that the remaining properties which are number shown in schedules A and B to the plaint would be enjoyed by the mortgagees for a period of 40 years from the date of the document together with improvements made thereon.
P 2 was one of them.
34 maindana Kuntamma Varg of Kunvadaji village Nettanige Magne, the one fourth portion bear ing a beriz of Rs.
1 in C.A. No.
December 6,1963.
Dipak Datta Chaudhuri, for respondent No.
98 and 99 of 1963 .
The Judgment of the Court was delivered by DAS GUPTA, J. This dispute between Burn Company Limited, Iron Works , Howrah and its workmen is over the profit bonus for the year 1960.
34 and of the beriz of Rs.
These names have to be borne in mind, because they are companynected with the 1/4th share which on partition went to Kunhamu Hajar by Ex.
L. Sen Gupta and B.P. Maheshwari, for the appellant in A. No.
The mortgagors agreed that the mortgagees would enjoy the remaining properties shown in A and B Schedules for a period of forty years and it was agreed that on the expiry of this period the mortgagors would have an option to redeem the mortgage land on payment of the amount due.
1 in C.A. No.
By a partition in the Mortgagees family Kunjamu go 4th shares of the interests in these properties.
97/1963 .
Subsequent to the death of Kunjamu the mortgagors and mortgagees entered into an agreement evidenced by Ex.
The first respondent purchased Schedule A B properties and filed a suit for redemption.
P 6 c .
The trial companyrt held that since Kunhi Pakki had taken benefit under Exp.
P 17 and P 17 a on October 6, 1861.
Each of these two sisters was allotted property of the beriz of Rs.
