Monday, 24 August 2015

Whether son is entitled to redeem property mortgaged by his father?

Decided On: 31.10.1932
Appellants: Ananda Pandurang
Respondent: Uttamrao
The son is accordingly, as a member of the joint family in which the shares are of necessity undetermined until partition, entitled to redeem as much property as his father could have redeemed, that is to say, the whole. Also Section 60, T. P. Act, is no bar to the owner of the equity for redeeming the whole mortgage,
Equivalent Citation: AIR1933Nag44(2)
Grille, A.J.C.

1. The judgment of this appeal will also cover Second Appeal No. 218-B of 1930. One Baliram Sonaji had mortgaged his field No. 10/1 to Ramchandra Dhansingh on 5th October 1917. He executed a second mortgage of this field on 6th April 1921 in favour of Kisanlal Amarchand together with an-other field. After this he leased the field for a period of. 15 years for payment of Rs. 600 to Pandurang, father of the plaintiff. He had a partner with him in the lease, one Prabhakar. In 1924 Kisanlal brought a suit on the basis of his mortgage and obtained a decree which was satisfied by Pandurang, the plaintiff's father by a payment of Rs. 8,000 odd in the following year. Ramchandra Dhansingh brought a mortgage suit on the basis of his mortgage and Pandurang was made a party, but he declined to redeem the mortgage and Ramchandra obtained a preliminary and final decree. The plaintiff who is a minor then brought a suit out of which these appeals arise, claiming a right to redeem the property on the ground that he was not made a party to the former suit where his father refused to redeem and that his father did not represent him in the suit and that he acted prejudicially to his interest therein in declining to redeem. The defendant Ramchandra contended that the decision in the previous suit where the father declined to redeem is binding on the son who was properly represented by his father and denied the right of the plaintiff as a son of the lessee to redeem at all. On the actual question of the redemption money the plaintiff claimed that he was not bound to pay more than double the mortgage money on the principle of damdupat, but the defendant contended that as he had been put in possession as a result of his foreclosure decree in 1927 he was a mortgagee in possession and consequently liable for accounts, and following the ruling in Panduji v. Panduji (1916) 12 NLR 1, the rule of damdupat did not apply.
2. The trial Court found on the preliminary issue that the suit was maintainable by the plaintiff and that although he had been represented by his father, with whom he was joint in the previous suit, yet there had been a signal failure on the part of his father to protect the interests of his son and that accordingly the son was not effectively represented by his father and was entitled to repudiate his father's representation in that case. Holding that the son was entitled to redeem, the trial Court further held that the rule of damdupat applied and further that the son was entitled to redeem the whole property and not as the defendant urged only one quarter thereof. The defendant's plea was that Pandurang's partner Prabhakar had failed to redeem his portion, and as the father also declined to redeem his half share in the half that remained joint family property with his son that too should be excluded and the plaintiff's claim should be limited to one quarter of the whole. In appeal by the defendant the judgment was modified to the extent that it was held that the rule of damdupat did not apply and that the amount due and payable in redemption was Rs. 1,850 and a decree was passed in plaintiff's favour allowing him to redeem 1/4th share only on payment of one quarter of Rs. 1,850. This judgment is challenged in two appeals, one by the plaintiff for the restoration of the trial Court's judgment and one by the defendant claiming the total reversal of that judgment.
3. Dealing first with, the defendant's appeal No. 213-B it is first urged that as the son of the lessee the plaintiff has no right of redemption. A lessee who takes the property for a lease of 15 years on prepayment of a lump sum certainly has an interest in the property and is included in Section 91, T. P. Act, among the persons who may sue for redemption. The other argument is that the plaintiff is bound by the previous suit and the Court failed to notice that the plaintiff has filed this suit in collusion with his father who is still alive. The defendant's sheet anchor is Gore v. Kashiram (1913) 9 NLR 1, where it is laid down that where a suit on a mortgage is brought against the father of the joint family and a decree is passed, the sons' interests pass under the decree even though they were not made parties to the suit and the sons cannot reopen the decree on the ground that the debts in respect of which the mortgage was given were avyavaharika; but it is also stated that the sons must be deemed to have been made parties through their father as manager and the debt one which they were bound to discharge. This ruling proceeds on the basis that the father had acted throughout in accordance with the ordinary duties and obligations of a father and that the sons who as members of the joint family are bound by the acts of their father cannot claim to escape the implications of the joint family in. Hindu law merely by the fact that they were not specifically cited as parties to the suit. The decision in Motiram v. Asa Ram AIR 1919 Nag 29is to the same effect, but the case of Jaddo Kunwar v. Sheo Shankar Ram (1911) 33 All 71 and the Privy Council appeal which 'arose" out of it, Sheo Shankar Ram v. Jaddo Kunwar AIR 1914 PC 136, on which the defendant also relies, do not really support him as-is pointed out in the trial Court when the findings were given on the preliminary issue on 5th December 1928. The real criterion of representation is whether the joint family was represented and substantial justice has been done. In that particular case the Court decided that there had been an effective, representation and substantial justice.
4. This principle was restated by their: Lordships of the Privy Council in Lingangowda v. Basangowda MANU/PR/0001/1927, where it' is laid down that a decree obtained by or against the managing member of a joint Hindu family is binding upon minor members of the family under Section 11, Expl. 6, Civil P. C., 1908, if it appears to the Court that the manager was acting in the former litigation on behalf of the minors in their interests; and Moti. v. Kanhva (1909) 5 NLR 181, also stresses the consideration of the bona fides of the manager of the joint family if he is to be held representative of the family in litigation. Now no doubt it has been laid down an Lalchand Thakur v. Seogobind Thakur: AIR 1929 Pat 741 that the mere fact that the manager of the family did not contest the suit does not necessarily show that he was careless of the interests of his family. The facts in the case how under discussion go far beyond a mere omission of a father to take part in the suit. The money used in payment of the lease is admittedly the joint family property as is the sum of Rs. 8,000 odd which was used to redeem Kisanlal's mortgage. The amount due for redemption of this second mortgage was but a fraction of the earlier amount, and in declining to redeem the father did grave injury to the family property in ignoring the interest of the son, and the right of the son to bring a suit for redemption has been correctly decided in both the lower Courts.
5. Now I turn to the plaintiff's appeal. Equally clear, is the plaintiff's right to redeem the whole of the mortgaged property. The lease between Pandurang and Prabhakar was a joint lease and the redemption in Kisanlal's mortgage suit could have been made by either of them. Prabhakar's right to share in the profits accruing from the redemption disappeared on his failure to contribute. Both or either could redeem and the redemption was made by Pandurang with money belonging to the joint family, for the mortgage remained one, and the present defendant had foreclosed the whole property and not merely a part thereof and he could not have disputed Pandurang's right to redeem the whole any more than Pandurang's right could have been, disputed in Kisanlal's mortgage suit. The son is accordingly, as a member of the joint family in which the shares are of necessity undetermined until partition, entitled to redeem as much property as his father could have redeemed, that is to say, the whole. Also Section 60, T. P. Act, is no bar to the owner of the equity for redeeming the whole mortgage, amount : Sri Kanta Prasad v. Jag Sah AIR 1925 Pat 57 and the Privy Council ruling in Mirza Yadali Beg v. Tukaram AIR 1921 PC 125.
6. There remains the question as to the amount which the plaintiff is liable to pay on redemption, and on this point it appears to me that the reasoning of the trial Court is preferable to that of the lower appellate Court. In any case, there would be no account until the year 1927 when the defendant foreclosed on his mortgage; and even if his subsequent entry is to be treated as that of a mortgagee in possession the agreement between the parties, that the profits for the two years of the defendant's possession were to be set off against the interests accruing, negatives any necessity for accounting. This indeed is tacitly admitted by the defendant-respondent who concedes that the price is known but that in theory interest on one side and profits on the other should be calculated. This is unnecessary in view of the agreement that they should be considered as cancelling each other. The result is that the defendant's appeal fails and that of the plaintiff succeeds. The, judgment and decree of the lower appellate Court, are set aside and those of the original Court restored. The defendant will pay; the plaintiff's posts throughout.

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