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Fozmal Bhutaji vs Shridhar Vithal on 6 September, 1945 cites

Brij Narain vs Mangla Prasad on 24 November, 1923

The debt is a debt incurred by the father, and by reason of its being an antecedent debt within the meaning of the observations of Lord Dunedin in Brij Narain v. Mangla Prasad the right, title and interest of the sons are bound by the alienation, it being an alienation for an antecedent debt. 'There is no other argument which the sons can avail themselves of, when a suit is filed by the mortgagee on a debt I which was an antecedent debt and was secured by the alienation of the property by the father. In such an event, the alienation which is made by the father being deemed in law to be an alienation not only of the father's right, title and interest in the property but also of the right, title and interest of the sons in that property, what is the subject-matter of the mortgage is the whole of the joint family property including the right, title and interest of the sons therein and what the mortgagee does in filing a suit for the realisation of that mortgage is that he makes the subject-matter of that suit for realisation of the mortgage security, the whole of that property including the right, title and interest of the sons therein. It makes not the slightest difference to the position that when the suit is filed by the mortgagee the father is dead and that according to the strict position in Hindu law the right, title and interest of the father in the property has survived over to the other members of the joint family, viz. the sons. The whole of the joint family property including the father's right, title and interest therein which has survived over to the sons and including the sons' right, title and interest in that property, is the subject-matter of that suit for realisation of the mortgage security and the whole of that property including the father's and the sons' right, title and interest therein is liable to satisfy the mortgage. This is the true position in Hindu law and the passage which has been cited by Mr. Desai from Section 293(5) at p. 343 of Mulla's Hindu Law does riot affect the position at all. I am therefore of opinion that Mr. Desai's contention in this behalf also fails, that the right, title and interest of defendants Nos. 1 to 5 the surviving members of the joint family constituted by the deceased Vithal Ramchandra Parulkar and defendants Nos. 1 to 5 herein are also bound by the terms of this indenture of mortgage dated November 17, 1922, and the suit filed for the realisation of this mortgage security having been filed within sixty years of the due date, viz. November 16, 1923, is within time.
Bombay High Court Cites 5 - Cited by 80 - Full Document

Vasudeva Mudaliar vs K.S. Srinivasa Pillai on 22 July, 1907

The Privy Council case in Vasudeva Mudaliar v. Srinivasa Pillai [1942] 1 Cal. 326, which I have referred to earlier, was referred to by the learned Judges of the Calcutta High Court in arriving at this decision of theirs. This decision of the Calcutta High Court is on all fours with the present case and I would be justified in following it and in coming to the conclusion as contended by Mr. S. M. Shah, I may, however, deal with the argument which was advanced by Mr. Desai in this connection, and which was based on the provisions of the next amending Act, viz. Act XXI of 1929 which was an Act called The Transfer of Property (Amendment) Supplementary Act, 1929. Mr. Desai pointed out that Section 9 of this Supplementary Act XXI of 1929 added "the advances secured by mortgage by deposit of title deeds" within the provisions of Article 132 of the 2nd schedule to the Indian Limitation Act. He further pointed out Section 15 of the, same Act, Sub-section (1) whereof is in identical terms with the terms of Section 63 of Act IXX of 1929, which, however, did not merely rest with this saving clause therein contained but went on to provide in Sub-section (2) that a suit by a mortgagee for foreclosure or sale on a mortgage by deposit of title-deeds may be instituted within two years from the date of the commencement of the Act (Act XXI of 1929) or within sixty years from the date when the money secured by the mortgage became due, whichever period expires first. Mr. Desai therefore contended that there being no such provision in the case of the English mortgagee whose right to foreclose was brought to an end by the amendment of Section 67 enacted in Act XX of 1929, the Court should come to the conclusion that the period of limitation which was prescribed under Article 132 was operative even in the case of an English mortgagee, enough time having been given to the English mortgagees, viz. six. months, if they wanted to file their suits on their mortgages. This argument of Mr. Desai, however, is not sound for the reason that it completely ignores the saving clause which has been enacted in Section 63 of Act XX of 1929 and misreads the provisions of Section 15(2) of Act XXI of 1929. Section 15(2) of the latter Act was considered necessary to be enacted because in spite of the provisions of Section 15(7) of that Act which in terms did not affect the terms or incidents of any transfer made or effected before April 1, 1930, or any remedy or proceeding in respect of such right, title, obligation or liability, etc. it did in fact curtail the rights which equitable mortgagees by deposit of title deeds had by virtue of this saving clause to file suits within sixty years for payment of the dues under their mortgages. Section 15(2) was thus necessary because it curtailed the rights which otherwise would have been vested in the equitable mortgagees by deposit of title deeds. No such provision was considered necessary in the case of an English mortgagee whose right to foreclose was taken away by the enactment of Section 31(c) of the Act 'XX of 1929.
Bombay High Court Cites 4 - Cited by 46 - Full Document
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