LexNANNI BAI AND OTHERS versus GITA BAI
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S.C.R.
SUPREME COURT REPORTS
479
NANNI BAI AND OTHERS
v.
GITA BAI
(B. P. SINHA, JAFER IMAM and SuBBA RAO JJ.)
Agriculturist, Protection of-Jurisdiction of Special Judge-
Ex£Cution sale, if binds the legal representative not party to it-Limi-
tation-Mitakshara Law of Partition-Document, if and when must
be registered-Admissibility-Sangli State Agriculturist ·Protection
Act (I of r936)-lndian Limitation Act (IX of r908), Arts. I2, I34
and r48-lndian Registration Act (Act XV I of r908), ss. r7
and 49.
This was an appeal by the defendants in a suit for possession
on redemption of certain mortgages instituted in the Court of the
Special Judge exercising jurisdiction under the Sangli State Agri-
culturists Protection Act (1 of 1936). Their case was that the
mortgaged properties had been sold at auction and purchased by
their father who had sold most of them to other persons more
than 12 years before the institution of the suit and as such the
suit was barred by limitation. The trial Court dismissed the suit.
On appeal the {Iigh Court of Sangli permitted the plaintiff to
amend the plaint originally filed so as to include the relief for
redemption and remanded the suit. The trial court, thereafter,
decreed the suit in part, holding that the claim in respect of por-
tions only of the mortgaged properties was barred by limitatiqn.
Both the parties appealed to the High Court of Bombay and the
appeals were heard together. The High Court dismissed the
defendant's appeal and allowed the plaintiff's appeal holding that
Art. 148 and not Art. 134 of the Limitation Act applied. In the
result, the plaintiff's suit was decreed in its entirety.
Held, that the preliminary objection that the Special Judge
had no jurisdiction under the Sangli State Agriculturists Protec-
tion Act to entertain the suit must be overruled. The fixing of
1915 as the date-line by the Act had reference to such reliefs as
could be had only by way of reopening of closed transactions ancr
could not, therefore, preclude the Special Judge from granting
other reliefs in respect of transactions entered into prior to
1915.
Nor could it be contended in bar that the plaii;ttiff was bound
in the first instance to set aside an auction sale of the mortgaged
properties in execution of a money decree in which she was not
substituted in place of her deceased fa th er as his true heir and
legal representative nor made a party and no controversy was
raised QY the parties nor decided by the Court as to who was the
true legal representative. The plaintiff was entitled to ignore
the sale and the suit was not barred under Art. fZ of the Limi-
tation Act.
•
•
.April r4.
I958
Nanni Bai
u.ud Others
v.
Gita Bai
Sinha].
480
SUPREME COUl~T REPORTS
[1959].
Malkarju" Bin Shidramappa Pasare v. NaJ'iiari Bi11 Shivappa,
(r900) L.R. 27 I.A. 2r6, doubted and distinguished.
In order that Art. 134 of the Limitation Act might be
attracted to a suit for possession on redemption, it \Vas necessary
for the defendant to prove affirmatively that the mortgagee or his
succe.ssor-in-i_nterest had transferred a larger interest than was
justified by the.mortgage.
Where, as in the present case, this
was not done, Art. r34 could not apply and the only other article
which could apply was Art. r48 of the Limitation Act.
'
Under the Mitakshara School of Hindu Law partition may be
either (r) a severance of the joint status of the coparcenary by
mere defining of shares but without specific allotments or (2)
partition by allotment of specific properties by metes and bounds
according to shares. The latter, if reduced to writing becomes
compulsorily registrable under s. r7( r)(b) of the Indian H.egistra-
tion Act but the former does not.
Consequently, in the present case such unregistered docu-
ments as were adduced by the plaintiff for the limited purpose of
proving partition in the former sense did not fall \vithin the
n1ischief of s. 49 of the .Indian l{egistration 1\ct and \Vere ad1nis-
sible in· evidence.
I •
CIVIL APPELLATE J·uRISDIOTION: Civil Appeal No.
'·
177 of 1954.
Appeal fi-om the judgment and decree dated Octo-
ber 9, 1950, of the Bombay High Court in ]i'irstAppeals
Nos. 361 & 363 of 1948 from Original Decree arising
. out of the judgment ai1d decree dated Jnly 31, 1946,
of the Court of Special Tribm1al, Mangalvcdho, in
Special Suit No. 1322 of 1938.
L. K. Jha., Rwneshwar Nath, J.B. Dadachanji and
S. N. Andley, for .thExcerpt shown. Read the full judgment & AI analysis in Lexace.