PATEL BHUDARBHAI MAGANBHAI AND ANR.versusPATEL KHEMABHAI AMBARAM AND ORS.

  ,.              PATEL BHUDARBHAI MAGANBHAI AND ANR.                                   A
                                   v.
                   PATEL KHEMABHAI AMBARAM AND ORS.

                                  DECEMBER 11, 1996

                    (K. RAMASWAMY AND G.T. NANAVATI, JJ.]                               B

               Hindu Succession Act, 1956: Section 14

              Hindu Law-Succession-Baroda Hindu Nibandh-B, widow of G
       mortgaged the property to K-Death of B-f'roperty succeeded by H, daughter
       of the respondent predecessor in title-Suit filed by respondent for redemption
                                                                                        c
       of mortgage-Dismissal of suit by Trial Court-Appellate Court decreed the
       suir-Appellate Court held that daughter (respondent predecessor-in-title)
       was entitled to inherit properties either under Baroda Hindu Nibandh or under
       Hindu Succession Acr-Hc/d in view of the finding of Appellate Court the
       appellant was not preferential heir to respondent predecessor-in-title.          D
               Limitation Act, 1963: Schedule-Article 6l(b).

             Mortgage. of property-Mortgagee's wife, S subsequently executed a
       second mortgage in favour of another person-Redemption suit filed by
       S-Neither original mortgagor nor successor-in-interest made parties to           E
       second mortgage and suit for redemption-But fact of second mortgage was
       within the knowledge of original mortgagor-Held S became mortgagee on
       redemption-field suit filed after 12 years from the execution of second
       mortgage was not barred by limitation.

               CIVIL APPELLATE JURISDICTiON : Civil Appeal No. 720 of                   F
       1986.

            From the Judgment and Order dated 22.7.85 of the Gujarat High
       Court in S.A. No. 294 of 1978.

               S.K. Dholakia and S.C. Patel for the Appellants.                         G
- C>           Vimal Dave and Yashank Andhru for the Respondents.

               The following Order of the Court was delivered :

               This appeal by special leave arises from the judgment of the learned     H
                                             967
    968                   SUPREME COURT REPORTS [1996] SUPP. 9 S.CR.
A single Judge of the Gujarat High Court, made on 24.2.1986 in Second
    Appeal No. 294/78. The first appellant is the son of Maganbhai. Bai Jivi,
    widow of Gala mortgaged the property in 1911 to Kana for 31 years. Bai
    Jivi died in the year 1955. The property was succeeded by Hati, daughter
    of the respondent predecessor in title in 1965. The respondents filed the
B suit for redemption of the mortgage. The Trial Court dismissed the suit
    but on appeal, the Additional District Judge, Mehsana decreed the suit
  . holding thus :

             "On the plaintiff depositing Rs. 112.50 p. on or before 31st July,
             1978 in the Trial Court, defendant No. 2 shall bring into Court,
c            all documents in possession or power relating to mortgaged
             property and all such documents shall be delivered over to the
             plaintiff and defendant No. 2 shall if so required recover or
             retransfer the said mortgaged property free from the said mortgage
             and clear of and free from all encumbrances created by defendant
             No. 2 or by any person claiming under him or any person through
D            whom he claims and also free from all liability whatsoever arising
             from the mortgage, and, shall, if so required, deliver up to the
             plaintiff quiet and peaceful possession of the said property."

           In the second appeal it was confirmed. Thus, this appeal by special
E leave.
           Shri Dholakia, learned senior counsel for the appellant, contends
    that in view of the pedigree of the parties, the appellant is grand-son of
    Amichand while Hati is a distant relation represented through Dansang
    who were sons of Rupsang. Gali is the grand-son of Jekaran. One of the
F   sons of Rupsang being nearer in relation.within seven degrees the appellant
    is entitled to a preferential right for succession than the respondents-
    predecessor-in-title. There is a controversy as to when the widow of
    J oitaram died. In that behalf, the appellate Court having considered the
    entire evidence had concluded thus :
G            "Hence Joitaram was entitled to inherit properties of Gala in
             preference to defendant Bhudarbhai Magandas and even his father
             and grand-father who will come in the category of Samandaks.
             Looking to the provisions of Baroda Hindu Nibahdh, widow of
             Joitaram Kashidas, i.e., mother of Bai Jivi was entitled to inherit
H            the properties of Gala as if her husband was alive at the time of
   PA1ELBHUDARIBHAIMAGANBHAI v. PA1ELKHEMABHAIAMBARAM 969

        death of Bai Jivi. That way Bai Hali's mother was entitled to inherit   A
        the properties of Gala on the death of Bai Jivi as a widow o Sagotra
        Sapindas and that way we can say that Bai Hali's mother became
        the owner of the suit property and on the death of Bai Jivi Hati's
        mother died some time in the year 1965. We can take it that she
        must have died after 1.8.1965 and that way she was the absolute
                                                                                B
        owner of the properties when she died. Bai H ati, thus, be entitled
        to inherit those properties either under Barockt Hindu Nibandh or
        even under the Hindu Succession Act, 1956."

     In view of the above finding, we do not find any force in the
contention of Shri Dholakia that the appellant is a preferential heir to the    C
respondent-predecessor-in-title.

       He further contends that by operation of Article 61(b) of the
Schedule to the Limitation Act, 1963, the appellants-predecessor-in-inter-
est also became the owner of the property and the right to recover D
possession from them was barred by limitation since the suit came to be
filed beyond 12 years from the date of the second redemption of the
mortgage. In this behalf, it is necessary to note a few relevant facts. As
stated earlier, Bai Jivi mortgaged the property to Kana who is a mortgagee.
His wife, Shivi appears to have.executed a mortgage on 13.5.1935 in favour
of one Kuber. Subsequently, in 1965, Bai Shivi filed a suit O.S. No. 69/1956 E
for redemption of the mortgage executed by her on 31.5.1935 and she
became the owner of the property. It is stated that in assertion of her right
as an owner, Shivi executed the mortgage in favour of Kuber. Her asser-
tion was to the knowledge of predecessor-in-title of the respondent and,
therefore, the suit or redemption should have been filed within 12 years F
from the date of the execution of the second mortgage. Clause (b) of
Article 61 provides that a suit by a mortgagor to recover possession of
immovable property mortgaged and afterwards transferred by the
mortgagee for a valuable consideration, has to be filed within 12 years from
the date of which transfer becomes known to the plaintiff. It is settled legal
position that once a mortgage is always a mortgage until it is duly redeemed G
within the period of limitation. It is seen that Bai Jivi or her successor-in-
interest were not made parties either to the second mortgage executed on
31.5.1975 or to the suit for redemption nor any acknowledgment in that
behalf has been pleaded or established. It is also ~een that in the plaint the
only pleading was that Hali became aware of the execution of the H
    970                  SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A   mortgaged in favour of the second mortgagee in 1935. It is true that Bai
    Jivi had knowledge of assertion of any hostile title either as an owner or
    of any other title detrimental to her interest and acquiesced to it; perhaps
    the contention bears relevance. Bai Jivi had knowledge of such execution
    of mortgage though Shivi. On redemption, Shivi became mortgagee. Ob-
B   viously, therefore, this contention was not pressed. On the other hand, the
    contention in the High Court was that the suit was not filed within the
    period of limitation of 30 years, after the Act had come into force. Relying
    upon Section 30 of the Act, since it extended the period by seven years,
    the High Court held that under the Act after the expiry of 60 years
    provided under the old Limitation Act, 1908 and within 30 years and seven
C   years' extended period, the suit came to be filed on 18th June, 1970. The
    Act had come into force on January 1, 1964. Tagging the period of
    limitation provided under the Act, namely, 30 years and seven years, the
    suit was within limitation. The High Court has held that the suit was not
    barred by limitation. In the appellate Court also, two more contentions on
D   limitation which were not argued before the High Court, were addressed
    and they were negatived. Since they have not been repeated here, it is not
    necessary for us to go into these questions. Considered from this perspec-
    tive, we think that the High Court was right in dismissing the second
    appeal.

E         The appeal is accordingly dismissed but without costs.

    T.N.A.                                                   Appeal dismissed.




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