BAI KEVAL Vs. MADHU KALA

JUDGEMENT

(1.) The plaintiffs sued to redeem the plaint properties on payment by instalments of the sum that might be found due on taking accounts under the Dekkhan Agriculturists Relief Act of the mortgage of the 19 July 1892. These properties were mortgaged by the plaintiff's father Kala to the deceased Kalyanchand. Kala died about eighteen years ago leaving the plaintiffs and their brother Shiva, now deceased, as his heirs. The first and second defendants are the representatives of Kalyanchand, while the other defendants are alienees from the mortgagee. There can be no doubt that the plaintiff's were entitled to redeem the properties still in the hands of the representatives of Kalyanchand. With regard to certain other properties which had been alienated, it was contended that the plaintiffs such was barred under Art. 134 of Schedule I of the Indian Limitation Act. Admittedly the suit was brought more than three years after the first plaintiff came of age, but less than three years after the second plaintiff came of age.

(2.) The trial Court in considering whether the provisions of Section 7 of the Indian Limitation Act applied considered that on referring to the form of the decree in a redemption suit it is the mortgagee who has to give a discharge and not the mortgagor, therefore Section 7 did not apply at all. He considered, however, that the suit of the first plaintiff was barred by limitation. So he gave a decree to the second plaintiff only and directed that various amounts should be paid to the various defendants as stated in the decree.

(3.) On appeal the learned Assistant Judge considered that as the equity of redemption was vested in all the heirs of Kala jointly, it was not open to the others to grant a valid discharge without the concurrence of Kika, the second plaintiff. He did not agree with the view of the Court below that Section 7 of the Indian Limitation Act did not apply. The decree of the lower Court was varied so as to make it in favour of both the plaintiffs while the amount payable to defendants Nos. 3 to 5 was increased by Rs. 200.