PATEL BHUDARBHAI MAGANBHAI AND ANR. versus PATEL KHEMABHAI AMBARAM AND ORS.

Citation: [1996] SUPP. 9 S.C.R. 967 · Decided: 11-12-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

,. 
PATEL BHUDARBHAI MAGANBHAI AND ANR. 
A 
v. 
PATEL KHEMABHAI AMBARAM AND ORS. 
DECEMBER 11, 1996 
(K. RAMASWAMY AND G.T. NANAVATI, JJ.] 
B 
Hindu Succession Act, 1956: Section 14 
Hindu Law-Succession-Baroda Hindu Nibandh-B, widow of G 
mortgaged the property to K-Death of B-f'roperty succeeded by H, daughter c 
of the respondent predecessor in title-Suit filed by respondent for redemption 
of mortgage-Dismissal of suit by Trial Court-Appellate Court decreed the 
suir-Appellate Court held that daughter (respondent predecessor-in-title) 
was entitled to inherit properties either under Baroda Hindu Nibandh or under 
Hindu Succession Acr-Hc/d in view of the finding of Appellate Court the 
appellant was not preferential heir to respondent predecessor-in-title. 
D 
Limitation Act, 1963: Schedule-Article 6l(b). 
Mortgage. of property-Mortgagee's wife, S subsequently executed a 
second mortgage in favour of another person-Redemption suit filed by 
S-Neither original mortgagor nor successor-in-interest made parties to E 
second mortgage and suit for redemption-But fact of second mortgage was 
within the knowledge of original mortgagor-Held S became mortgagee on 
redemption-field suit filed after 12 years from the execution of second 
mortgage was not barred by limitation. 
CIVIL APPELLATE JURISDICTiON : Civil Appeal No. 720 of F 
1986. 
From the Judgment and Order dated 22.7.85 of the Gujarat High 
Court in S.A. No. 294 of 1978. 
S.K. Dholakia and S.C. Patel for the Appellants. 
G 
- C> 
Vimal Dave and Yashank Andhru for the Respondents. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment of the learned H 
967 
968 
SUPREME COURT REPORTS [1996] SUPP. 9 S.CR. 
A single Judge of the Gujarat High Court, made on 24.2.1986 in Second 
Appeal No. 294/78. The first appellant is the son of Maganbhai. Bai Jivi, 
widow of Gala mortgaged the property in 1911 to Kana for 31 years. Bai 
Jivi died in the year 1955. The property was succeeded by Hati, daughter 
of the respondent predecessor in title in 1965. The respondents filed the 
B suit for redemption of the mortgage. The Trial Court dismissed the suit 
but on appeal, the Additional District Judge, Mehsana decreed the suit 
. holding thus : 
c 
D 
"On the plaintiff depositing Rs. 112.50 p. on or before 31st July, 
1978 in the Trial Court, defendant No. 2 shall bring into Court, 
all documents in possession or power relating to mortgaged 
property and all such documents shall be delivered over to the 
plaintiff and defendant No. 2 shall if so required recover or 
retransfer the said mortgaged property free from the said mortgage 
and clear of and free from all encumbrances created by defendant 
No. 2 or by any person claiming under him or any person through 
whom he claims and also free from all liability whatsoever arising 
from the mortgage, and, shall, if so required, deliver up to the 
plaintiff quiet and peaceful possession of the said property." 
In the second appeal it was confirmed. Thus, this appeal by special 
E leave. 
F 
G 
H 
Shri Dholakia, learned senior counsel for the appellant, contends 
that in view of the pedigree of the parties, the appellant is grand-son of 
Amichand while Hati is a distant relation represented through Dansang 
who were sons of Rupsang. Gali is the grand-son of Jekaran. One of the 
sons of Rupsang being nearer in relation.within seven degrees the appellant 
is entitled to a preferential right for succession than the respondents-
predecessor-in-title. There is a controversy as to when the widow of 
J oitaram died. In that behalf, the appellate Court having considered the 
entire evidence had concluded thus : 
"Hence Joitaram was entitled to inherit properties of Gala in 
preference to defendant Bhudarbhai Magandas and even his father 
and grand-father who will come in the category of Samandaks. 
Looking to the provisions of Baroda Hindu Nibahdh, widow of 
Joitaram Kashidas, i.e., mother of Bai Jivi was entitled to inherit 
the properties of Gala as if her husband was alive at the time of 
PA1ELBHUDARIBHAIMAGANBHAI v. PA1ELKHEMABHAIAMBARAM 969 
death of Bai Jivi. That way Bai Hali's mother was entitled to inherit A 
the properties of Gala on the death of Bai Jivi as a widow o Sagotra 
Sapindas and that way we can say that Bai Hali's mother became 
the owner of the suit property and on the death of Bai Jivi Hati's 
mother died some time in the year 1965. We can take it that she 
must have died aft

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