LexNAMDEV SHRIPATI NALE versus BAPU GANAPATI JAGTAP AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B C NAMDEV SHRIPATI NALE v. BAPU GANAPATI JAGTAP AND ANR. MARCH 11, 1997 (B.P. JEEVAN REDDY AND K.S. PARIPOORAN, JJ.] Bombay Pargana and Kulkami Watans (Abolition) Act, 1950-Section 4"-0ccupancy price-Statutory obligation of payment of-Possessory Mo1tgage-Mortgagee in possession of morlgaged prope1ty-Default com- milted by possessory 11w1tgagee in not paying occupancy price within time specifie~Regrant obtained by posing himself as tc11a111-Right to redeem will subsist notwi1hsta11di11g any sale or f u1feiture or right of mortgagor-Ap- plicability or Section 90 of the Tmsl Act. D Appellant's father executed a possessory mortgage of the suit property, an inam land, in favour of the first respondent for a period of 12 years. The mortgagee was to take the income of the. property and appropriate the same towards the interest due etc. Appellant's father died in 1953. The ap11ellant was a minor then. The property was an inam land. By the Bombay Pargana and kulkarni watans (Abolition) Act, 1950, the E land was resumed by the Government. There was a provision to regrant it to the holder of the land on payment of the occupancy price on or before ,25.1.1956. The mortgagor did not pay the occupancy price till then. The mortgage could not be redeemed within the period fixed. After the expiry of that period, the appellant sought rcdempt.ion which was declined. The F trial court dismissed the suit. In appeal, a preliminary decr~e fo:· redemp- tion and 1·ecovcry uf possession of the property was passed. The District Judge held that the mortgagee failed to remit the occuJJancy 11rice as enjoined on him, and by putting forward the pleas that he was a tenant, he obtained the re:,:rant and thus gained an advantage and that the right to redeem still vested in the appellant. In second appeal, High Court G restored the Judgment and decree of the trial court. It was held that due to non payment of the occupancy price by the appellant as per the provisions of the Maharashtra Act, 1950, the land vested in the Govern- ment and was regranted to the first respondent and that the appellant had lost his right to redeem the property. This appeal had been filed against H the judgment of the High Court. 980 - '( - - N.S.NALEv. BAPUGANAPATIJAGTAP 981 · The appellant urged that the mortgagee was bound to pay the A occupancy price and by failing to do so he brought about the situation, enabling him to obtain a regrant of the property in his name by posing himself a,s a tenant and committed a default or a wrong and by taking advantage of his position, as one in possession of the property, obtained a benefit or advantage and as the resultant advantage should be deemed B to have been obtained for the benefit of the appellant, the suit for redemp- tion should be decreed. The respondents contended that in view of the failure of. the mortgagor remit the occupancy price within the time' limited by law, the land vested in the Government and it could not be said that he committed C any default and obtained any undue advantage in the subsequent regrant made in his favour and that the provisions of Section 90 of the Indian Trust Act were not attracted. Allowing the appeal, this Court D HELD : 1.1. The occupancy price payable under Section 4 of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950, to obtain a regrant, will be covered by the expression 'all public charges accruing due in respect of the property', 'all other charges of public nature' as specilied in Sections 65 (c) and 76 (c) of the Transfer of Property Act res11ectively. E In the absence of a contract to the contrary, during the pendency of the mortgage, when the mortgagee is in possession of the mortgaged pro11erty, he was bound to pay or remit the occupancy pl'ice under Section 4 of the Act for and on behalf of the mortgagor, so as to prevent the happening of the consequences stated in the proviso. The first respondent-mortgagee F failed to comply with the aforesaid statutory obligation. He committed a wrong or a default. Whether the default/wrong committed has as it!P-basis a contractual obligation or a statutory obligation, makes no difference. He was taken, to be a tenant by the authorities, which enabled him to get the regrant in his favour. That was only because the first respondent, as a possessory mortgagee, was in possession of the property. He took ad- vantage of his position as a possessory mortgagee. In so d
Excerpt shown. Read the full judgment & AI analysis in Lexace.