Case: Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai

The property in dispute, situated in Baroda City, originally belonged to Motibhai Bapubhai Shibandi Baxi (for short Motibhai). He created a mortgage with possession of the disputed property in favour of one Nanaji Balwant Pilkhanewala (for s hort Nanaji) in 1871 for a sum of Rs. 800. In 1890 a second mortgage was created in favour of the same mortgage and the amount secured by this second mortgage was Rs. 375. Somewhere between 1890 and 1912 the original mortgagee Nanaji died leaving behind his two sons Hari and Purshottam as his heirs and legal representatives. The two sons of Nanaji sold the entire mortgagee rights and interest to one Ganpatram Mugutram Vyas (for short Ganpatram) on 4th of July, 1912. Ganpatram in his turn sold the mortgagee rights in a part of the mortgaged property, viz., common latrine, to one Vamanrao Laxmanrao Nirkhe (for short Vamanrao).Ganpatram died and his son Chhotelal Ganpatram (for short Chhotelal) 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 (for short Chhaganlal Mehta.)Mortgagor Motibhai. also died leaving behind his son Chimanrai Motibhai Baxi (for s hort Chimanrai). Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai. On September 12, 1950 Taralaxmi sold her right, title and interest in the suit property to one Shantilal Purshottamdas Dalia (for short S hantilal). Later on Shantilal conveyed his right, title and interest in the property to the plaintiff, Narandas Haribhai Patel (for short Narandas).It appears that during the life time of Chimanrai Ganpatram the mortgagee had sent a n otice, Ext. 77, dated 15th of April, 1913 to Chimanrai informing him that the mortgaged property was in a dilapidated condition and required repairs. He had already spent some amount towards repairs but still substantial repairs were neede d and the same should be got done by him or he should pay the mortgage amount and redeem the property. On receipt of this letter Chimanrai made the following endorsement:"During the lifetime of my father, I had become separated from him without taking any kind of the moveable or immovable property belonging to him and even after his death, I have not taken any kind of his properties nor have I kept my right over the said properties and so I am not in any way responsible for your any transaction whatsoever in connection with his properties. Be it known to you. And while giving you a definite assurance to that effect I have made attestation on the afores aid document in respect of purchase of the mortgagees rights, which may also be known to you."Long after the death of Chimanrai, Chhotelal, son of Ganpatram, gave a similar notice, Ext. 28, dated 6th of October, 1933 to Chhot iba, the widow of Chimanrai calling upon her to Redeem the mortgage in question. On this notice similar endorsement on behalf of Chhotiba was made on 10th of October, 1933 by Lomeshprasad Hariprasad Desai (for short Lomeshprasad). her daughters son, as had been made by Chimanrai earlier on the notice given by Ganpatram. Yet another notice, Ext. 78 dated 21st of September, 1933 was sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to the same effect. In her reply, Ext. 73, d ated 3rd of October, 1933 to the notice, Taralaxmibai stated inter alia that her father Chimanrai had foregone all rights whatsoever in the property of his father, Motibhai, during his lifetime and hence she had no concern with the property of Motibhai . It was further stated that her own mother Chhotiba was alive (in October 1933) and, Therefore, she had no concern whatsoever with the property of Motibhai or the liabilities arising out of the dealings of Motibhai.Narandas after the purch ase of the mortgagors rights from Shantilal filed a suit for redemption impleading both the assignees For the mortgagees rights, Chhaganlal Keshavlal Mehta, as the 1st defendant, and Vamanrao Laxmanrao Nirkhe, as the 2nd defendant.The claim was resistedthe 1st defendant on grounds that the plaintiff had no right to redeem inasmuch as his predecessor in interest, Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on their own admission had no subsisting ri ght, title and interest in the mortgaged property. The plaintiff who is only a transferee from Taralaxmibai could not rank higher, that Ganpatram, the predecessor in interest of defendant No. 1 was not in possession of the property as a mortgagee but as an absolute owner thereof. The defendant No. 1, who claims through Ganpatrams son Chhotalal, was also an absolute owner and continued to remain in possession from 1933-34 as such. As an absolute owner he carried out repairs to the mortgaged property. He also obtained permission from the municipality and built the house afresh after incurring heavy expenditure and in doing so he had spent about Rs. 3374-2-0. He also denied that Shantilal, purchaser of the eq uity of redemption was the plaintiffs benamidar. Indeed, the plaintiff had falsely created the evidence of benamidar to bring the present suit, and the suit was barred by limitation and estoppel. In the alternative he pleaded that he should be paid the sum of Rs. 5099-2-0 if the plaintiffs suit for redemption was to be decreed.The trial court came to the conclusion that the plaintiff had no right to redeem the mortgaged property as he had failed to prove that he had purchased the property benami in the name of Shantilal and that afterwards Shantilal had passed deed of conveyance or mutation in his favour. In view of this finding it was not necessary for the trial court to decide other issues but all the same the tri al court recorded findings on the remaining issues also in order to complete the judgment. It found that Chimanrai, Chhotiba or Taralaxmibai never relinquished their right, title and interest in the suit property, that the suit was within limitati on, and that the suit was not barred by estoppel. As regards the amount spent on repairs the court came to the conclusion that the defendant No. I had spent Rs. 3374-2-O and, therefore, if the plaintiff was to be allowed to redeem the pro perty he would have to pay that amount in addition to the mortgage consideration. The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem.Feeling aggrieved the plaintiff went up in appeal, and the d efendant No. 1 filed a cross-objection against the finding that went against him. The appeal and the cross- objection were allowed by the Assistant Judge by his judgment dated 31st of March, 1956 on the finding that the plaintiff had pu rchased the equity of redemption benami in the name of Shantilal and that Shantilal had executed a deed of conveyance, Ext. 66, in favour of the plaintiff and, therefore, he was entitled to redeem the property. He further found that the endo rsements made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai did not amount to relinquishment of their right, title and interest in the property. He set aside the decree of the trial court and remanded the case for deciding the rem aining points after allowing the parties to lead fresh evidence on those issues. The defendant No. I challenged the remand order by filing an appeal in the High Court. His complaint was against the direction given by the appellate court whil e remanding the case. The High Court allowed the appeal in part and modified the direction of the lower appellate court asking the trial court to decide other issues afresh after allowing further evidence, except issues Nos. 1 and 4.Consequent upon the order of remand the Joint Civil Judge, Jr. Division, decided other issues against the plaintiff. He held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai had 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 interest. He further held that the suit was barred by time and estoppel, and that defendant No. I had spent a substantia l amount on repairs. On these findings he again dismissed the suit by his judgment dated 21st of August, 1958.The plaintiff again took up the matter in

Reasoning: A perusal of this provi sion indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. Order 34, rule I of theCode of Civil Procedure deals with the parties to suits for foreclosure, sale and redemptionIt has already been pointed out that defendant No. 2 was the purchaser of mortgagee rights in respect of common latrine while defendan t No. I is the purchaser of the mortgagee rights in respect of the remaining mortgaged property, viz., the houses. When the plaintiff filed the suit he impleaded both the mortgagees as defendants Nos. 1 and 2. Before the Assistant Judge a statement was made on behalf of the original plaintiff that he was prepared to pay the entire mortgage amount for redemption of the mortgaged property to the 1st defendant. A similar statement was made by Mr. Oza, counsel for the plaintiff in the H igh Court who further stated that in no event hereafter would the plaintiff seek any relief against the property in possession of defendant No. 2, viz., the right to the common latrine in which mortgagee rights had been transferred to defendant No . 2 by Ganpatram. Besides, the severance of the two properties by Ganpatram was recognised by the mortgagor and hence the severance was with the implied consent of the mortgagor. It is a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right u nder the mortgage as against those mortgagees who are not before the court, the court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court. This principle was recognised in a Full Bench decision in Motilal Yadav v Samal Bechar.(1) If one of the defendants in a suit dies and his heirs are not brought on record the suit certainly would abate as against that party. The suit, however, could not abate a s against the other surviving defendants. A question may arise whether the suit is maintainable against the surviving defendants. In the instant case the suit abated as against defendant No. 2 in respect of the common latrine. But there is no difficul ty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.It may, however, be pointed out that defendant No. 2 never contested the suit. He was impleaded as a party i t was incumbent on the plaintiff to have impleaded all the mortgagees as a party. But if the defendant did not contest the suit at any stage, will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he ma y not be a necessary party in the appeal. The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High CourtIn our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicat e that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property. The property cannot remain in vacuum even for a single moment. It must vest in somebody. Accordingly, after the death of Motibhai his property vested in his son who was the sole heir. The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission. The contention raised on behalf of the defendant-appellan t is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a differe nt stand from the one taken by them earlier. In substance, the question is whether the endorsements would amount to estoppel.The difference between admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. In this state of the legal position, if th e endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the propertyIt may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. After the death of Motibhai his son Chimanrai succeeded in lawTo bring the case within the scope of estoppel as defined in section5 of the Evidencet I) there mustbe a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2 ) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon;) there musthave been belie f on the part of the other party in its truth;) there musthave been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on th e faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person clai ming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.None of these conditions have been satisfied in the instant case, for examp le, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full k nowledge or could have known if he had cared to know. It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of thi s case it is not possible to hold that ingredients of section5 of the EvidenceAct have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law.