# PATEL BHUDARBHAI MAGANBHAI AND ANR v. PATEL KHEMABHAI AMBARAM AND ORS

- **Citation:** [1996] Supp. 9 S.C.R. 967
- **Court:** Supreme Court of India
- **Decided:** 1996-12-11
- **Bench:** K. Ramaswamy, G.T. Nanavati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-bhudarbhai-maganbhai-and-anr-v-patel-khemabhai-ambaram-and-ors-15143
- **Pages:** 4

## Headnote

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 c
of the respondent predecessor in title-Suit filed by respondent for redemption
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.

## Text

,.
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 c
of the respondent predecessor in title-Suit filed by respondent for redemption
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 :
c
D
"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,
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
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.
F
G
H
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
sons of Rupsang being nearer in relation.within seven degrees the appellant
is entitled to a preferential right for succession than the respondentspredecessor-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 :
"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
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
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."
B
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-interest 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 assertion 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-ininterest 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. ObB 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 perspective, 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.
,
•