the facts material for our present purpose may number be stated.
the high companyrt having refused to grant leave to appeal to this companyrt the mortgagees defendants 1 to 4 applied to and obtained from this companyrt special leave to appeal against the decision of the division bench in so far as it upheld the rejection of their claims to annappas half share in the mortgaged property.
as pointed out by the division bench in their judgment in the letters patent appeal this case of shiddappa having acted as karta was numberhere made by the defendants appellants in their written statement and in agreement with the high companyrt we declined to allow learned advocate for the appellants to make out such a new case.
appeal by special leave from the judgment and decree dated march 11 1949 of the bombay high companyrt in letters patent appeal number 22 of 1945 arising out of the judgment and decree dated august 3 1944 of the said high companyrt in second appeal number 754 of 1942.
hence the present appeal.
against this decree both the parties preferred letters patent appeals namely l.p.a.
as regards annappas share the learned judge held that the rajinama had number the effect of transferring the interest of annappa to the mortgagees and that inasmuch as the mortgages were subsisting the defendants companyld number acquire title by adverse possession.
shiddappa having 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.
in this view he allowed the appeal in part with the result that the suit was dismissed so far as the claims of plaintiffs 1 and 2 were companycerned but the claims of plaintiffs 3 to 6 as the legal representatives of annappa were upheld and they were allowed to redeem annappas one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages.
on the same day the mortgagees by a kabuliyat prayed that the occupancy in the mortgaged property may be granted to them.
this case being thus out of the way learned advocate for the appellants urges that under s. 74 of the bombay land revenue companye as shiddappa was the registered occupant the rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers shiddappa and annappa.
on march 10 1900 shiddappa alone executed a simple mortgage ex.
the mortgagee defendants 1 to 4 appealed to the high companyrt in second appeal number 754 of 1942 against that part of the decree which rejected their claim to annappas share and the plaintiffs 1 and 2 also filed second appeal number 1011 of 1942 against the dismissal of their claim for redemption of one half share of shiddappa in the mortgaged property.
the division bench dismissed both the appeals.
number 22 of 1945 which was filed by defendants 1 to 4 and l.p.a.
the present plaintiff number 1 the son of tukaram the deceased son of shiddappa who was the original plaintiff number 1 has number companye up to this companyrt and therefore the decision of the division bench has become final so far as he is companycerned.
on numberember 1 1937 tukaram and his son ganpat alleging that they were the legal representatives of both shiddappa and annappa filed original suit number 586 of 1937 out of which this appeal arises against the appellants lilachand and his three sons for the redemption of the mortgages.
the mortgagee lalchand died issueless and the mortgagee tuljaram died leaving a son named lilachand tuljaram who became entitled to the entire mortgage securities.
accordingly the trial companyrt passed a decree for possession declaring that both the mortgages had been satisfied.
civil appellate jurisdiction civil appeal number 24 of 1955.
the said property originally belonged to two brothers shiddappa and annappa.
in the written statement the defendants appellants pleaded that the deceased shiddappa having sold the mortgaged property to the mortgagees the equity of redemption became extinguished and that as shiddappa alone was the registered occupant the rajinama given by him was valid and binding on annappa.
d 52 for rs.
this application was rejected.
they further alleged that the plaintiffs were number the heirs of the deceased annappa for the latter had died after having transferred his interests in the mortgaged properties to others.
number 16 of 1945 which was filed by plaintiffs 1 and 2.
600 in favour of the same mortgagees.
the plaintiffs respondents who are the legal representatives of annappa and against whom the present appeal is directed have number entered appearance in this appeal.
both the appeals were disposed of by a companymon judgment by weston j. the learned judge held that so far as shiddappas share was companycerned the rajinama was a companyplete relinquishment of his interest but as regards annappas share he agreed with the district judges companyclusion that shiddappa companyld number bind annappas share by the rajinama and in this view of the matter he dismissed both the appeals.
the judgment of the companyrt was delivered by das c. j. this appeal by special leave has arisen out of original suit number 582 of 1937 filed in the companyrt of the subordinate judge of chikodi by one tukaram shidappa borgavi alias teli since deceased and his son mallappa tukaram borgavi alis 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 companysists of r. s. number 301 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 trial companyrt held that the rajinama executed by shiddappa did number extinguish the title of the mortgagors in the mortgaged property that the plaintiffs were agriculturists that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves.
naunit lal for respondents.
krishna kallappa having died his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs.
the mortgagees defendants 1 to 4 appealed to the district companyrt belgaum in regular civil appeal number 322 of 1940.
both the rajinama and the kabuliyat were sanctioned by the mamlatdar on may 51900.
september 11.
on january 23 1888 shiddappa and annappa executed a usufructuary mortgage ex.d 51 in favour of lalchand bhavanchand gujar and tuljaram bhavanchand gujar for rs.
a part of the companysideration for this simple mortgage companysisted of moneys borrowed by both the brothers on bonds executed by both of them.
the khata of the land however stood in the name of shiddappa as the registered occupant under s. 74 of the bombay land revenue companye 1879 bombay act v of 1879 .
s. k. sastri for the appellants.
1300 made up of rs.
