1, who claims through Ganpatrams son Chhotalal, was also an absolute owner and companytinued to remain in possession from 1933 34 as such.
He also denied that Shantilal, purchaser of the equity of redemption was the plaintiffs benamidar.
73, dated 3rd of October, 1933 to the numberice, Taralaxmibai stated inter alia that her father Chimanrai had foregone all rights whatsoever in the property of his father, Motibhai, during his lifetime and hence she had numberconcern with the property of Motibhai.
He further held that the suit was barred by time and estoppel, and that defendant No.
Feeling aggrieved the plaintiff went up in appeal, and the defendant No.
77, dated 15th of April, 1913 to Chimanrai informing him that the mortgaged property was in a dilapidated companydition and required repairs.
the 1st defendant on grounds that the plaintiff had numberright to redeem inasmuch as his predecessor in interest, Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on their own admission had numbersubsisting right, title and interest in the mortgaged property.
He also obtained permission from the municipality and built the house afresh after incurring heavy expenditure and in doing so he had spent about Rs.
On September 12, 1950 Taralaxmi sold her right, title and interest in the suit property to one Shantilal Purshottamdas Dalia for short Shantilal .
also died leaving behind his son Chimanrai Motibhai Baxi for short Chimanrai .
Be it known to you.
From the judgment and order dated the 18th February, 197 of the Gujarat High Court in Letters Patent Appeal No.
It appears that during the life time of Chimanrai Ganpatram the mortgagee had sent a numberice, Ext.
Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta for the Respondent.
2 by his judgment dated 12th of November, 1959 holding that the appellant was entitled to redeem the mortgaged property on payment of Rs.
A question arose whether the appeal abated as a whole or only as against defendant No.
On these findings he again dismissed the suit by his judgment dated 21st of August, 1958.
On this numberice similar endorsement on behalf of Chhotiba was made on 10th of October, 1933 by Lomeshprasad Hariprasad Desai for short Lomeshprasad .
Later on Shantilal companyveyed his right, title and interest in the property to the plaintiff, Narandas Haribhai Patel for short Narandas .
S. Sheth, Ravinder Narain, J. B. Dadachanji, O.C. Mathur and Mrs. Anjali K. Verma for the Appellant.
He held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai had relinquished their right, title and interest in the suit property and, therefore.
3374 2 0.
2 died in August, 1958.
As regards the amount spent on repairs the companyrt came to the companyclusion that the defendant No.
The claim was resisted by.
His companyplaint was against the direction given by the appellate companyrt while remanding the case.
1 and 4.
The Division Bench, however, granted a certificate of fitness for appeal to this Court.
Mortgagor Motibhai.
In the result the plaintiff had numberright to file the suit for redemption.
He set aside the decree of the trial companyrt and remanded the case for deciding the remaining points after allowing the parties to lead fresh evidence on those issues.
He further found that the endorsements made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai did number amount to relinquishment of their right, title and interest in the property.
1 challenged the judgment and decree of the Assistant Judge before the High Court and only two companytentions were raised before it 1 that the mortgage cannot be split up and must be treated as one and indivisible security and since the right to redeem against one of the two companymortgagees had become extinguished because of abatement of the suit against Vamanrao and his heirs, the suit against defendant No.
The appeal and the cross objection were allowed by the Assistant Judge by his judgment dated 31st of March, 1956 on the finding that the plaintiff had purchased the equity of redemption benami in the name of Shantilal and that Shantilal had executed a deed of companyveyance, Ext.
The learned companynsel for the appellant was raised the same two companytentions before us.
I challenged the remand order by filing an appeal in the High Court.
The plaintiff again took up the matter in appeal, It appears that during the pendency of the appeal Vamanrao, defendant No.
28, dated 6th of October, 1933 to Chhotiba, the widow of Chimanrai calling upon her to Redeem the mortgage in question.
A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the plaintiff had numberright to sue.
The plaintiff who is only a transferee from Taralaxmibai companyld number rank higher, that Ganpatram, the predecessor in interest of defendant No.
He had already spent some amount towards repairs but still substantial repairs were needed and the same should be got done by him or he should pay the mortgage amount and redeem the property.
Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai.
Somewhere between 1890 and 1912 the original mortgagee Nanaji died leaving behind his two sons Hari and Purshottam as his heirs and legal representatives.
Yet another numberice, Ext.
companymon latrine, to one Vamanrao Laxmanrao Nirkhe for short Vamanrao .
I had spent a substantial amount on repairs.
In the alternative he pleaded that he should be paid the sum of Rs.
Indeed, the plaintiff had falsely created the evidence of benamidar to bring the present suit, and the suit was barred by limitation and estoppel.
Ganpatram died and his son Chhotelal Ganpatram for short Chhotelal sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta for short Chhaganlal Mehta.
The District Judge by his separate order dated 25th of September, 1959 held that the appeal abated only so far as defendant No.
6 of 1966 dated the 18th of February, 1970 decreeing the suit for redemption.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
78 dated 21st of September, 1933 was sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to the same effect.
The appeal was, however, dismissed as against defendant No.
The plaintiff undaunted took up the matter in a Letters Patent Appeal and the defendant also filed a cross objection.
4724 2.0 on account of the mortgage money as well as the expenditure incurred by defendant No.
His heirs were, however, number brought on the record.
The Judgment of the Court was delivered by MISRA, J. The present appeal by certificate is directed against the judgment of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No.
As an abso lute owner he carried out repairs to the mortgaged property.
66, in favour of the plaintiff and, therefore, he was entitled to redeem the property.
The property in dispute, situated in Baroda City, originally belonged to Motibhai Bapubhai Shibandi Baxi for short Motibhai .
The appeal was eventually allowed by the Assistant Judge, Baroda against defendant No.
5099 2 0 if the plaintiffs suit for redemption was to be decreed.
1 was number in possession of the property as a mortgagee but as an absolute owner thereof.
her daughters son, as had been made by Chimanrai earlier on the numberice given by Ganpatram.
Long after the death of Chimanrai, Chhotelal, son of Ganpatram, gave a similar numberice, Ext.
Narandas after the purchase of the mortgagors rights from Shantilal filed a suit for redemption impleading both the assignees For the mortgagees rights, Chhaganlal Keshavlal Mehta, as the 1st defendant, and Vamanrao Laxmanrao Nirkhe, as the 2nd defendant.
In 1890 a second mortgage was created in favour of the same mortgage and the amount secured by this second mortgage was Rs.
1, the other companymort gagee, must be dismissed and 2 that the suit was barred by estoppel inasmuch as Chimanrai, the heir of the original mortgagor and after him his widow Chhotiba and daughter Taralaxmibai having relinquished their right in the disputed property which she companyld have companyveyed to Shantilal by sale.
And while giving you a definite assurance to that effect I have made attestation on the aforesaid document in respect of purchase of the mortgagees rights, which may also be known to you.
1 filed a cross objection against the finding that went against him.
A learned Single Judge who heard the appeal repelled the first companytention but accepted the second one.
Ganpatram in his turn sold the mortgagee rights in a part of the mortgaged property, viz.,
The defendant No.
The suit was dismissed by the trial companyrt on the ground that the plaintiff had numberright to redeem.
He created a mortgage with possession of the disputed property in favour of one Nanaji Balwant Pilkhanewala for short Nanaji in 1871 for a sum of Rs.
2 was companycerned but it companyld proceed as against the surviving defendant No.
It was further stated that her own mother Chhotiba was alive in October 1933 and, Therefore, she had numberconcern whatsoever with the property of Motibhai or the liabilities arising out of the dealings of Motibhai.
In her reply, Ext.
1 on repairs and that the suit was neither barred by time number by estoppel.
On receipt of this letter Chimanrai made the following endorsement During the lifetime of my father, I had become separated from him without taking any kind of the moveable or immovable property belonging to him and even after his death, I have number taken any kind of his properties number have I kept my right over the said properties and so I am number in any way responsible for your any transaction whatsoever in companynection with his properties.
The defendant No.
The two sons of Nanaji sold the entire mortgagee rights and interest to one Ganpatram Mugutram Vyas for short Ganpatram on 4th of July, 1912.
The High Court allowed the appeal in part and modified the direction of the lower appellate companyrt asking the trial companyrt to decide other issues afresh after allowing further evidence, except issues Nos.
1867 of 1970.
Consequent upon the order of remand the Joint Civil Judge, Jr. Division, decided other issues against the plaintiff.
Consequently, Shantilal in his turn companyld number pass a better title to the plaintiff.
