ISHWAR LINGO DESAI Vs. DATTU GOPAL DESAI

JUDGEMENT

(1.) Plaintiff owned a one-third share of an equity of redemption. He brought a suit to redeem one-third of the mortgaged property from the four surviving joint mortgagees. The litigation has, up to the hearing of this appeal, passed through the hands of one or more Subordinate Judges, three District Judges and three Judges of the High Court. But at no time did the form of the suit excite any comment or give rise to any objection. I must therefore take it that this is a normal feature of the law of mortgage in the mofussil.

(2.) Omitting mention of the earlier stages through which the redemption suit passed, it is sufficient to say that on the 7th January 1902 the District Judge dismissed the suit. Plaintiff appealed to the High Court. On the 10th January 1902 the four joint mortgagees effected a partition inter se, and the property, the subject-matter of the suit, fell to the share of the defendant 1, Gopal. On the 15th January 1902 Gopal died, leaving him surviving a widow, the defendant in the present suit. On appeal to the High Court against the decree of the 7th January 1902, Gopal s death was brought to their Lordships notice. It is clear from the judgment that the question, whether any fresh representation of Gopal was needed, was argued and decided. Their Lordships held that the right to sue survived against the three other defendants, joint tenants of the mortgaged property. No mention whatever was made of the partition of the 10th January 1902. Their Lordships in second appeal reversed the decree of the District Judge and remanded the suit. Finally in 1903, the plaintiff s claim was decreed. The amount of redemption money was paid and it appears that the plaintiff was put in possession. The widow of Gopal here intervened, claiming that the property had fallen to her husband s share, that she was his sole heir, and had never been a party to the suit for redemption. This plea found favour with the executing Court. The plaintiff was therefore after six or seven years litigation relegated to a suit, to have , that order set aside and to obtain the fruits of his decree. This suit was brought in 1907. The Subordinate Judge decided in favour of the plaintiff. On appeal to the District Court, the learned District Judge reversed the decree of the Subordinate Judge and dismissed the plaintiff s suit. The plaintiff preferred a second appeal to the High Court, which was heard by Batchelor J. sitting alone. That learned Judge, though for slightly different reason, confirmed the decree of the lower appellate Court. Against his decision, an appeal has been admitted under the Letters Patent.

(3.) The only point to be considered is whether the partition of 10th January 1902 was a transfer of or other dealing with the property in suit, within the meaning of Section 52 of the Transfer of Property Act. It is not disputed that if it was, it occurred pendente lite, and would therefore be void against the present plaintiff- appellant. It is not disputed that the partition was a transfer, or at any rate a dealing with the property in suit. But it was urged on behalf of the defendant- respondent, and both appeal Courts accepted the contention, that it was not a transfer or dealing with the property which in any way affected the right of the plaintiff as a party to that suit. It might have been thought that the question answered itself on a first view of what has actually happened. The simple fact is that as a result of that partition, whether direct or indirect we will consider presently, the plaintiffs redemption suit has been defeated, and he has been deprived of the fruits of his decree. It is nowhere shown, and it is not even contended before us, that the plaintiff was aware of the partition. Speaking for myself, it would have made no difference in law, whether he had or had not known of this pendente lite trafficking in the suit property. The sole question is whether in fact it has affected the plaintiff s right as a party to that redemption suit. We think there can be no doubt, and indeed no room for any argument to the contrary, but that it has.