Ibhram Gulamhusain Mulnaji vs Mohiddin Balku Modak

Norman Macleod, C.J.—The suit property belonged to three persons, Gana, Tanu and Yesa. Whether they were joint owners or tenants-in-common does not appear. On 6th December 1884, Tanu mortgaged the property to Vithal Ganesh by Exhibit 54 and, on the 15th December 1884, all the three created a further charge in favour of Vithal, Exhibit 30. It was mentioned that all the three agreed to be bound by the previous mortgage of Tanu. On the 26th August 1889, one Chinto purchased at an auction sale in execution of a money decree against Gana and others the equity of redemption of Gana in the suit property. In 1891 the sale certificate, Exhibit 51, was issued. On the 27th September 1895, Vithal, the original mortgagee, and his son, Govind, sold their interest as mortgagees to the first defendant. On the 7th January 1905, a document was passed by Vithal, the son of Gana, and by Tanu to the first defendant. It purported to be a mortgage-deed in substitution of Exhibits 54 and 30 and so creating a fresh mortgage for the previous amounts plus the amount admitted to have been spent by the mortgagees on improvements and further cash advance. On the 13th February 1906, the first defendant obtained a conveyance out and out from Vithal and Tanu.

On the 20th October 1895, Chinto, who purchased the interest of Gana and his right to redeem these properties, sold his right, title and interest to Vithal and his son Govind who had only recently, on the 27th September, sold their mortgagees'' rights to the first defendant. On the 7th November 1908, the plaintiff purchased from Vithal''s son Govind and another their interest in the property. He now resists the claim of the plaintiff to redeem on the ground that by the document of 7th January 1905 the previous mortgages were extinguished and he So held adversely to any one who claimed to have any right to redeem these mortgages.

The question is whether the plaintiff, after all these various transactions, has still retained a right to redeem the mortgaged property. If a mortgagee gets in the equity of redemption from one of two co-mortgagors and claims to be in possession as owner to the knowledge of the other co-mortgagor, then it may be said that the right of the co-mortgagor to redeem his share will be extinguished after twelve years. We have not been referred to any authority for the proposition that if a co-mortgagor is not acquainted with the purchase of the equity of redemption from the other co-mortgagor, still, time is running against him in favour of the mortgagee who has purchased.

The first defendant acquired nothing by the deed, dated 7th January 1905, from Gana''s son Vithal, since Gana had no interest left in the property. If he is considered to have taken a fresh mortgage from Tanu, when, on the 13th February 1906, he obtained a conveyance out and out from Tanu, it might be said that, as far as that mortgage was concerned, the equity of redemption had gone, still the holder of Gana''s equity of redemption would be entitled to light out the question of redeeming Gana''s share from the mortgagee who, ha says, bought the equity of redemption from Gana''s co-mortgagor. In any event, limitation would not run until the 13th February 1906 in which case the suit would be in time. But, as far as we can see, Vithal and his son Govind were the owners of Gana''s right on the 7th January 1905, and it could not be shown that there was anything which prevented them from suing out those rights against the first defendant. The plaintiff who purchased those rights on the 7th November 1908 is, therefore, able to sue. Although the transactions relating to the suit property were somewhat complicated, (and we are much indebted to Mr. Coyajee for his lucid exposition of them), we think they were made very much more complicated by the lower Courts not taking a clearer view of the issues involved when considering the facts of the case. No doubt, in the trial Court the real issues were obscured by the various other issues raised which had no connection with the issue of limitation.

We think the decree dismissing the suit with costs was wrong, and the plaintiff should be held entitled to redeem one-half of the suit property from the first defendant on payment of what will be found due on half the mortgage. We have heard nothing about the third mortgagor Yesa and this decree must be without prejudice to the rights of Yesa or his descendants who may be entitled to come in and ask for redemption with regard to one-third of the property.

The plaintiff must get his costs in this Court and in the lower appellate Court and will have to pay costs in the trial Court.

There will be an inquiry as to the amount payable by the plaintiff in order to redeem his share, and when that is ascertained, a preliminary decree for redemption will be passed.

Cross-objections are dismissed with costs.