HOUSABAI VISHNU YADAV Vs. KASHINATH PANDHARINATH VANPAL
LAWS(BOM)-1972-1-5
HIGH COURT OF BOMBAY
Decided on January 29,1972

HOUSABAI VISHNU YADAV Appellant
VERSUS
KASHINATH PANDHARINATH VANPAL Respondents

JUDGEMENT

- (1.) One Waman Vithal Kulkarni, the owner of the seven suit properties, which included six fields and a house in the Gaothan at village borgaon in taluka Koregaon of district Satara executed a possessory mortgage deed on 31-7-1894 for a sum of Rs. 325/- in favour of one Vyankoji Sadashiv Khajore. Vyankoji's son Krishnaji executed an assignment of mortgagee's right in the suit properties in favour of Hari Ramchandra Kulkarni on 22-9-1905 in spite of the assignment of the mortgagee rights in all the seven suit properties Hari Ramchandra did not get possession of S.No. 122 and the house at Gaothan at Borgaon, though he was in possession of the other properties. Eknath son of Krishnaji after his father's death filed Civil Suit No. 303 of 1930 against Rangnath Hari Kulkarni, son of assignee Hari Ramchandra for recovery of certain sum. A decree was passed in favour of Eknath. After several execution applications decree-holder Eknath filed again Darkhast no. 537 of 1942 and succeeded in bringing the five properties to sale which were auctioned on 22-1-1946. A sale certificate was also issued after confirmation of the sale on 29-4-1947 in favour of Eknath Krishnaji because he purchased those five properties. Eknath later transferred those five properties to Hansabai Vishnu Yadav, defendant No.1 in the suit with which we are concerned.
(2.) The plaintiff's case in this suit is that his grandfather Waman Vithal Kulkarni had mortgaged the suit property in favour of Vyankoji, predecessor-in-title of defendants Nos. 2 and 3 and that the mortgagee had enjoyed the usufruct of the mortgaged property and now he is entitled to sue for redemption against these defendants as well as against defendant No.1 who had acquired the mortgagee's rights relating to suit properties later. The contesting defendant here is defendant No.1 . According to her she is the absolute owner of the give properties because she had purchased them from defendant No.2 and the father of defendant No.3. She has further pleaded that she had no knowledge of the previous transaction and that therefore she is a bona fide purchaser for value without notice. It was further contended that the suit was barred by Article 134 of the old Limitation Act and Article 61-B of the new Limitation Act.
(3.) The learned Civil Judge, Koregaon, district Satara, who tried the suit held that the suit properties were mortgaged by the plaintiff's grandfather Waman in favour of Vyankoji and that although the seven suit properties were given to the mortgagee yet defendant No.1 got only five properties when she purchased the property from Eknath on 25-3-1964. He further held that the suit is within limitation and that defendant No.1 did not prove that she was a bona fide purchaser for value without notice. Accordingly, therefore he partly decreed the suit and ordered that after the plaintiff deposited Rs. 325/- the defendant shall deliver all the documents in her possession or power relating to the mortgaged property to him and that they shall also put the plaintiff in possession of the give properties. There was no order as regards S. No. 122 and the house at Gaothan at Borgaon because the defendants did not obtain possession of the property. This preliminary decree was challenged in the District Court at Satara and the learned District Judge who heard the appeal observed that only one point as regards the necessity of the persons interested in the rights of the mortgagee being impleaded was contended before him. Because the persons who were interested in the rights of the mortgagee had not been impleaded, therefore the suit was liable to be dismissed under Order 34, Rule 1. The learned Judge found against the appellant because no authority had been shown to him to establish the fact that such a suit was liable to be dismissed. Accordingly, therefore, Mr.Athalye, the learned District Judge dismissed the appeal. The only point therefore that arises here for consideration is to see whether the decree passed by the learned District Judge is according to law.;


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