CHHAGANLAL KESHAVLAL MEHTA versus PATEL NARANDAS HARIBHAI

Citation: [1982] 2 S.C.R. 166 · Decided: 11-12-1981 · Supreme Court of India · Bench: V. BALAKRISHNA ERADI · Disposal: Dismissed

Judgment (excerpt)

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CHHAGANLAL KESHAVLAL MEHTA 
v. 
PATEL NARANDAS HARIBHAI 
December 11, 1981 
(V. BALAKRISHNA ERADI AND R. B. MISRA, JJ.] 
Suit for redemption of mortgage-Order XXXIV Rule I CM/ Procedure 
Code-Right of a co-mortgagor lo redeem his own share, section 60 of the Transfer 
of Property Act, scope of-Abatement by death of parties-Order XXlll Rule 2 
Civil Procedure Code. 
Estoppel by conduct-Section ll5 of the Evidence Act-Difference between 
admission and estoppel, explained. 
Motibhai created two mortgages in respect of the same property in the years 
1871 and 1893 in favour o-f one Nanaji who died somewhere between I 890 and 
1912 leaving behind his two sons Hari and Purushottam as his heirs and legal 
representatives. They both sold the entire mortgagee rights and interest to one 
Ganpatram on 4th July, 1912, who in his turn sold the mortgagee rights in a 
part of the mortgaged property, namely, common latrine to one Vamanrao. 
Ganpatram died and his son Chhotalal sold away his rights as a mortgagee in 
possession in respect of the rest of the properties which still remained with him, 
to Chhaganlal Keshavlal Mehta, the appellant-defendant No. 1. 
Mortgagor Motibhai also died leaving behind his son Cbimanrai. Chimanrai 
died leaving behind his widow Chhotiba and a daughter 
Taralaxmibai. On 
September 12, 1950 Taralaxmibai sold her right, title and interest in the suit 
property to one Shantilal 'Nho later on conveyed his right, title and interest in 
the property to the respondent-plaintiff Narandas Haribhai Patel. 
During the 
life time of Chimanrai, Ganpatrnm, the mortgagee had sent a notice, Exhibit 77 
dated 15th April, 1913 informing him that the mortgaged property was in a 
dilapidated condition and required repairs. He further called upon Chimanrai 
to pay the amount already spent by him towards the repairs to get further repairs 
done or in the alternative pay up the mortgage amount and redeem the 
property, Chimanrai, denied his responsibility. After the death of Chimanrai 
Chhotalal 
gave a similar notices, Exhibits 68 
and 
78, 
dated 21st of 
September, 1933 aod 6th October 1933 to Taralaxmibai daughter of Chimanrai 
and to Chhotiba, the widow 
to 
the same effect. 
Both Chhotiba and 
Taralaxmibai denied their liabilities. Narandas after the purchase of the mort-
gagor's rights from Shantilal'filed a suit for redemption impleading both the 
assignees of 
the 
mortgagee's 
rights, 
namely, 
Chhaganlal 
Keshavlal 
Mehta, the appellant as defendant No. I and Vamanrao as defendant No. 2. 
The suit was dismissed by the trial court on the ground that the plaintiff had no 
right to redeem. In this view of the matter it was not necessary to decide other 
issues but the trial court recorded findings on other issues also including the 
issue ef estoppel. The appeal and the cross-objection filed by the parties were 
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C.K. MEHTA V. P. N. HARIBHAI 
167 
allowed by the Assistant Judge holding that plaintiff bad purchased the equity of 
redemption and so he was entitled to redeem and that the suit was not barred by 
estoppel. 
He 
however remanded !the case 
for 
deciding 
the remaining 
issues. On remand the Joint Civil Judge held that Chimanrai, his widow 
Chhotiba and his daughter Taralaxmibai 
relinquished 
their 
right, 
title 
and interest in the suit property and, therefore, 
Taralaxmibai had no 
subsisting interest or title to transfer to the plaintiff or his 
predecessor 
in inlerest. He further held that the suit was barred by time and estoppel, and 
that defendant No. I had spent a substantial amount on repairs. On these 
findings the suit was dismissed once again. During the pendency of the appeal 
by the respondent, Vamanrao died in August, 1958. His heirs were, however, 
not brought on the record. The appeal was allowed as against defendent No. 1 
but dismissed as abated against defendent No. 2 and it was held that the respon-
dent was entitled to redeem the mortgaged property on payment of the mortgaged 
money as well as the expenditure incurred on repairs, and that the suit was 
neither barred by time nor by estoppel. On further appeal to the High Court a 
learned single Judge reversed the Judgment and decree of the lower appellate 
Court and dismissed the suit. The respondent-plaintiff took up the matter in the 
letters patent appeal and the appellant-defendant No. I also filed a cross-objec-
tion. A Division Bench of the High Court' allowed the appeal and decreed the 

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