Full Judgment Text
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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
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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.