Bombay High Court
Ramchandra Mankeshwar vs Bhimrav Ravji And Anr. on 1 March, 1877
Equivalent citations: (1877)ILR 1BOM577
JUDGMENT Michael Westropp, C.J.
1. The case Tarachand v. Lakshman (I.L.R., 1 Bom., 91) cited by the Assistant Judge is not any authority for his decision. There was not in that case any mortgage or other specific lien on the land created by the Mirasdar, Bhagu, or his predecessors in title, previously to his execution of the razinama in favour of Lakshman, the new occupant. The learned pleader for the respondents, in the present case, relied upon Bombay Act I of 1865, Section 2, Clause (j) and. Section 42, Clause 1st, as sufficient to support the title of the defendant Bhimrav Ravji, in whose favour Deoku (the first defendant) executed the razinama of the 5th July 1872 to the Jaghirdar Ravji Girdhar, father of Bhimrav Ravji. But there is nothing in Section 42 which would enable Deoku to relinquish more of the Mirasi estate than was left in her at the time of the razinama. She had already, on the 24th November 1869, by a duly-registered deed, mortgaged the lands in dispute to the plaintiff Ramchandra Mankeshwar for Rs. 150; that mortgage was pro tanto an assignment of her Mirasi interest, and that she could make such an assignment has not been disputed in this case. How far it would bind her husband's heirs, is not a question now before us. It would, at all events, bind her estate in the lands as a Hindu widow (See 2 Bom. H.C. Rep., 313, and 8 Bom. H.C. Rep., 37, A.C.J.); whether we regard the watan or the property as Mirasi or as that of an ordinary occupant (Khatedar), it was transferable (Bombay Act I of 1865, Section 36); and when she had executed the duly-registered mortgage of 1869, there was nought left in her to relinquish or otherwise deal with than the equity of redemption. Bhimrav Ravji, therefore, by Deoku's execution of the razinama in his favour took nothing except the equity of redemption. The Jaghirdar admitted him in virtue of that razinama, and not otherwise. This was not a case of a purchase at a sale for arrears of Government land revenue (As to Jaghirdars and Inamdars, see 11 Bom. H.C. Rep., 37). At such a sale the purchaser, inasmuch as the Government land revenue is the paramount charge upon the land, takes the land discharged of all incumbrances: Abdul Gani v. Krishnaji (10 Bom. H.C. Rep., 416), Gundo v. Mardan (10 Bom. H.C. Rep., 419) and Ghelabhai v. Pranjivan (11 Bom. H.C. Rep., 218). In the present case Bhimrav Ravji, if he had taken the trouble to search the register [as a prudent purchaser or intended assignee would have done] would have learned that the widow's interest in the lands was burdened with the plaintiff's mortgage. We reverse the decree of the Assistant Judge, and direct that the defendant Deoku do pay to the plaintiff the sum of Rs. 150, i.e., principal money, together with interest at the rate of 2 per cent, per mensem from the 24th November 1869 until payment: provided, however, (having regard to the rule of Damdupat) that the whole sum payable by her in respect of the said principal money and interest shall not exceed Rs. 300 in the whole, and it is further directed that all of the defendants shall pay to the plaintiff his costs of this suit, and that the defendants Bhimrav Ravji and Ravji Girdhar do pay to the plaintiff his costs of both appeals, and it is also directed that in default of payment of the said principal money and interest and costs of this suit by the said defendant Deoku, or of payment of the same and of the costs of both appeals by the defendant. Bhimrav Ravji (in his capacity as assignee of her equity of redemption) within six calendar months from this 1st day of March 1877, the estate of the widow Deoku in the land in the plaint mentioned shall be sold by public auction, and, after deduction of the expenses of sale, the proceeds of sale shall be applied in discharge of the said principal money and interest, (not exceeding Rs. 300 as aforesaid) and the costs of this suit and of both appeals, and the defendants in this suit shall be for ever barred and foreclosed from redeeming the said lands, and the residue, if any, of the said purchase-money left after payment of the said principal, interest, and costs, shall be made over to the defendant Bhimrav Ravji. The defendant Deoku and the defendant Vitto Balla are respectively to bear their own costs of the suit, and the defendants Bhimrav Ravji and Ravji Girdhar are to bear their own costs respectively of the suit and of both appeals.