TMI Blog1958 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... tain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called British India . The suit as originally framed, prayed for accounts in respect of two mortgages, though there were really three mortgages, to be described in detail hereinafter, and for possession of the, lands comprised in those mortgages. The first, defendant filed his written statement on January 6, 1940, contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened; that the mortgaged properties had been sold at auction and purchased by the defendant's father who, thus, became the full owner thereof; and that he had sold most of the properties to other persons who were holding those properties as full owners. Defelidant No. 3 who also represents the original mortgagee, filed a separate written statement supporting the first defendant. Of the defendants who are transferees from the original mortgagees or their heirs only defendant No. 8 filed his written statement on March 26, 1940, substantially supporting the first defendants written statement and adding that he had purchased the bulk o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary points in bar of the suit. At the fore- front of his submissions, the learned counsel for the appellants contended that the suit was outside the jurisdiction of the Special Court created under the Sangli State Agriculturists Protection Act I of 1936. With reference to the provisions of that Act, it was contended that the Act authorized the Special Court to take accounts and to reopen closed transactions only up to the year 1915, and that as the transactions which were the subject-matter of the suit, were of the years 1898, 1900 and 1901, the Special Court was not competent to go into those transactions and grant any relief to the agriculturist- plaintiff. In our opinion, there is no substance in this contention. The Sangli Act referred to above, had chosen the year 1915 as the dateline beyond which the court was not competent to grant any relief to agriculturists, by way of reopening of closed transactions. But that does not mean that the court itself was incompetent to grant any other relief in respect of transactions of a date prior to 1915. If the legislature had intended to limit the jurisdiction of the Special Court, as contended on behalf of the appellants, nothing woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution proceedings. If Sadashiv could not be the representative-in-interest of Gundi, as will presently appear, he could not have represented Gundi's estate, and, therefore, the gale as against him, would be of no effect as against the plaintiff. Bat it was argued in answer to this contention that the decision of the Privy Council in the case of Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1900) L.B. 27 1, A. 216, is an authority for the proposition that even if the property was sold by substituting a wrong person as the legal representative of the judgment-debtor, the sale would bind the estate of the judgment-debtor as much as if the right legal representative had been brought on the record of the execution proceedings. Assuming that the decision of the Privy Council in Malkarjun's case (supra) is correct, and that it is not subject to the infirmities of an ex parte judgment, asimay well be argued, that decision is clearly distinguishable so far as the present case is concerned. In Malkarjun's case, the executing court had been invited to decide the question as to who was the true legal representative of the judgment-debtor, and the court, after judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght on the record of this case, and, therefore, the Court is not in a position to know the exact terms of the sale-deeds. This difficulty, the appellants sought to overcome by inviting our attention to the statements made in paragraph 8 of the plaint. But those are bald statements giving the reasons why the defendants other than the original mortgagee, were being impleaded as defendants. There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale-deeds and other transfers referred to therein. The Court is, therefore, not in a position to find out the true position. Those sale-deeds themselves were the primary evidence of the interest sold. If those sale-deeds which are said to be registered documents, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleadings for the reception of other evidence which must always be of a very weak character in place of registered documents evidencing those transactions. Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such. The legislature, naturally, treats t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was the plaintiff, did not take steps to bring on record the legal representatives of that defendant. An attempt was made by the plaintiff later on to get his heirs substituted on the record, but the Court upheld the defendants objection and did not allow substitution to be made. It was, therefore, noted that the appeal which was then pending in the High 'Court, had abated as against defendant No. 2, and that, the order of remand made after his death and in the absence of his legal representatives, would not affect them. Therefore, it was contended that the whole suit would abate, because, in the absence of the heirs of the deceased defendant No. 2, the suit was imperfectly constituted under 0. 34, r. I of the Code of Civil Procedure. That rule requires that all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties............ The original mortgagee. under the three mortgages, was Kasturchand Kaniram. The defendant No. 1 has contested this suit by filing a separate written statement of his own as the successor-in-interest of the original mortgagee. It does not appear from the pleadings that the second defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, it was enough to bring on record only some out of the several legal representatives of a deceased party, on the authority of the judgment of the Bombay High Court in Mulchand v. Jairamdas (1934) 37- Bom. L, R. 288. But on the facts stated above, there was no room for the application of r. 4, O. XXII of the Code. All the legal representatives, at any rate, all those persons who were said to be the legal representatives of the deceased defendant No. 8, had been substituted. Thus, the requirements of O. XXTI had been fulfilled. If, subsequently, some of the heirs, thus substituted, are not served, the question is not one of abatement of the suit or of the appeal, but as to whether the suit or the appeal was competent in the absence of those persons. It does not appear that the absent parties were really necessary parties to the suit or the appeal in the sense that they were jointly interested with the others already on the record in any portion of the mortgaged property. In what circumstances they were not served or ordered to be struck off from the record, does not clearly appear from the printed record before us. The defendant No. 8e who happens to be the brother of the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rama-as sureties. The third mortgage-bond is for a further advance of ₹ 200 to the mortgagor Gundi, with his brothers aforesaid again figuring as sureties. It would, thus, appear that all the three mortgages are between the same parties as mortgagor and mortgagee, and the two brothers of the mortgagor join in executing the mortgages as sureties, the property given in mortgage belonging to all the three brothers. The total advance of ₹ 1,200 under those three mortgages, was made to the principal debtor, Gundi. It appears that, of the three brothers, Rama died first, and then Gundi, some time in 1903, survived by his two daughters-the plaintiff and defendant No. 13. The plaintiff's case is that the common ancestor, Appa, in his lifetime, had effected a partition amongst his three sons aforesaid, giving them each specific portions of his lands, reserving a portion for the maintenance of his wife. Those transactions are exhibits P-43, P-44, P-45 and P-46, all dated August 31 or September 1, 1892, and, apparently, forming parts of the same transaction. These are formal documents giving details of the lands allotted to each one of the three brothers and to their mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age-bonds themselves and the saledeed-exhibit D-54- dated June 17, 1909. By the last named document, Sadashiv purported to sell to Fulchand Kasturchand, son of the original mortgagee, practically the whole of the mortgaged properties, for a sum of ₹ 1,500. The recitals in the sale-deed would certainly make it out that the three brothers were joint in estate, and that the sale-deed was being executed to pay off the personal loans of Gundi and Rama during the Years 1900 to 1903, plus the loans taken by the vendor himself. Finally, the deed proceeds to make the following very significant declaration as to the status of the members of the so-called joint family: As I have sold to you my right, title and interest in the above said lands, neither I nor my heirs and executors of my will have any right whatsoever over the said property. As I am the male heir in the joint family by survivorship nobody except me has any interest in the aforesaid lands. I have sold to you whatever interest I had in the said, lands. It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , from the rest of the family. By this process, what was a joint tenancy, has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17(1) (b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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