28 November 1996
Supreme Court
Download

THACKER PRAGJI ANANDJI Vs MANSUKHLAL AMBALAL (DEAD) BY L.RS.

Bench: K. RAMASWAMY,G.T. NANAVATI
Case number: C.A. No.-000381-000381 / 1981
Diary number: 63300 / 1981
Advocates: Vs S. C. PATEL


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: THACKER PRAGJI ANANDJI

       Vs.

RESPONDENT: MANSUKH AMBALAL (DEAD) THROUGHHIS HEIRS AND LRS. & ANR.

DATE OF JUDGMENT:       28/11/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF NOVEMBER 1996 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.T. Nanavati      Vimal Dave, Adv. for the appellant      S.C.Patel, Adv. for the Respondents                          O R D E R      The following Order of the Court was delivered      Pragji Anandji  and Damji  Anandji are  brothers. House Nos. 247  & 248  situated in  Anjar  are  the  joint  family properties. It  would appear  that  on  December  18,  1956, Anandji, their  father  and  Damji  the  2nd  defendant  had mortgaged these  properties which  admittedly were  redeemed with their consent as evinced under Ex.27, a compromise. The appellant’s father Pragji had claimed that the consideration for redemption  of the  first mortgage  was their money. The finding recorded by all the courts is that consideration for redemption of  that mortgage  was by  hypothecation  on  the second  occasion   of  the  said  properties  in  favour  of Mansukhlal Ambalal,  the first  defendant. Pragji  had filed Suit No.  66/69 for  a declaration  that the second mortgage dated September  30, 1958 executed by damji and Anandji does not bind him. He also sought partition and possession of his half share  in the  said properties.  He also  set up a plea that after  the redemption  of the first mortgage, there was an oral  partition in  which House No. 248 fell to his share and House  No.247 fell  to the share of Damji. But that plea was negatived  by all  the courts.  The consequence would be that House  Nos.247 are  joint family  properties  in  which Pragji, the  father of  the appellant  and Damji, the second defendant, have  equal share in the properties. The findings recorded by  the courts  below is  that the  mortgage  dated September 30, 1958 binds the parties.      In view of these findings, the question is: whether the appellant is  entitled to the partition of the properties in two equal shares and allotment of one such share? In view of the finding that both the houses are joint family properties succeeded by Pragji and Damji, the brothers, they are liable to partition. However, it would be subject to the redemption of the  mortgage under  Ex.  38  dated  September  30,  1958

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

executed in  favour  of  Mansukhlal,  the  first  defendant. Accordingly, there  is a preliminary decree for partition of the houses  in two equal shares and one such share should be allotted to  the appellant.  It is  open  to  the  appellant before executing  the preliminary  decree  and  passing  the final decree  to have  the mortgage  executed,  Ex.  38,  in favour of  Mansukhlal redeemed  by paying  the mortgage debt and then  have  the  properties  partitioned  in  meets  and bounds. In  case the second defendant does not pay his share in the  mortgage debt,  the entire  amount should be paid by the appellant  in which  event the  second defendant  is not entitled  to   his  share   engrafted  in   the  stamps  and registeration  and   the  appellant   may  seek  appropriate direction from the trial Court for payment.      The  appeal   is  accordingly   allowed.  But,  in  the circumstances, without cost.