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2018 DIGILAW 472 (KAR)

Manager, Mahalingpur Urban Cooperative Bank Ltd. v. Mahananda w/o. Shrishail Mugalkhod

2018-04-04

KRISHNA S.DIXIT

body2018
JUDGMENT : 1. This Regular Second Appeal is directed against the Judgment and Decree made by learned Senior Civil Judge, Mudhol in R.A.No.25/2013 whereby the Judgment and Decree dated 29.08.2013 made by the learned Addl. Civil Judge, Mudhol in O.S.No.306/2005 to the extent the same relates to suit Schedule A property are reversed and further suit for partition and separate possession in respect of suit Schedule A property is decreed. 2. Brief facts of the case are: (a) All the respondents are related to each other. Collectively all they had borrowed money from the Appellant Cooperative Bank by executing three registered Mortgage Deeds in respect of Suit Schedule A property. (b) Subsequent to the borrowing, the Respondent Nos.1 and 2 had filed a Civil Suit in O.S.No.306/2005 for partition and separate possession of Suit Schedule A & B properties. All other Respondents were the Defendants and so also the Appellant Cooperative Bank. (c) The Trial Court by the Judgment and Decree dated 29.08.2013 had decreed the suit for partition so far as Suit Schedule B property was concerned. However, it had dismissed the suit in respect of Suit Schedule A property which was mortgaged to the Appellant Bank. (d) The Respondents-Plaintiffs had filed R.A.No.25/2013 against the Judgment and Decree of the Trial Court to the extent it had denied the Decree for partition in respect of Suit Schedule A property. The lower Appellate Court allowed this Appeal and granted a Decree of partition even in respect of this property. The same is in challenge in this Regular Second Appeal. 3. The learned counsel for the Appellant Cooperative Bank submits that, the impugned Judgment and Decree of the lower Appellate Court are bad in law in as much as it failed to see that no partition decree could have been given in respect of Suit Schedule A property which was the subject matter of mortgage. The counsel submits that, the grant of a partition Decree would prejudice the interest of the Appellant Bank as a mortgagee. 4. I have carefully considered the submission of the counsel for the Appellant. It is true that Suit Schedule A property is the subject matter of three mortgages executed by registered deeds for securing the loan taken by the Respondents herein. 4. I have carefully considered the submission of the counsel for the Appellant. It is true that Suit Schedule A property is the subject matter of three mortgages executed by registered deeds for securing the loan taken by the Respondents herein. When a property is mortgaged by way of deposit of title deeds, a limited interest in the property is transferred to and vested in the mortgagee, who holds the same by way of security for the repayment of loan. The interest of the owners of the property that remains after the mortgage, is called the equity of redemption which is nothing but the right of the mortgagors to redeem the mortgage. This equity is also a property which is capable of partition and thus, there is no legal impediment or bar for partitioning a property which is the subject of an equitable mortgage. Therefore, the contention of the Appellant is misconceived. 5. The learned counsel for the Appellant next contended that by virtue of this partition decree now granted by the lower Appellate Court, the interest of the Appellant mortgagee Bank is materially affected in as much as the Suit Schedule A property will be now divided amongst the Respondents. Admittedly, the mortgage which the Appellant holds does not involve possession of the property and that the said possession is with the Loanee – Respondents. There is no term or condition in the deeds of mortgage restraining the mortgagors from effecting partition of equity of redemption. Therefore, it is open to the mortgagors to effect partition of the said property and thereby the interest of the mortgagee Bank is not affected. 6. It is a settled position in the realm of law of mortgage that the doctrine of substituted security applies to mortgages also. The subject of the mortgage is the interest of the mortgagor in the Suit Schedule A property. When mortgaged it was undivided. After partition it is now held in severalty, but it is substantially the same thing which has been mortgaged to the Appellant herein and therefore, the Appellant has the same rights against the takers of the said property on partition. This view is supported by the decision of the Privy Counsel in the Case of Byjnath Lall Vs. Ramoodeen Chowdry reported in (1875) 21 WR 233. Thus, the interest of the mortgagee Bank is not at all prejudiced by the impugned partition decree. This view is supported by the decision of the Privy Counsel in the Case of Byjnath Lall Vs. Ramoodeen Chowdry reported in (1875) 21 WR 233. Thus, the interest of the mortgagee Bank is not at all prejudiced by the impugned partition decree. 7. It is important to quote a relevant portion of para 20 of the Judgment and Decree of the lower Appellate Court which protects the interest of the Appellant Bank completely: “xxxx Infact the loan was raised by defendant No1 as GPA holder for the benefit of the entire family. The plaintiffs contended that the suit properties are joint family properties. When the loan is raised by the power of attorney holder of the joint family for and behalf of entire family, then all the coparceners are liable to repay the loan with interest. Infact, on perusal of the provisions of Article 289 and Article 290, 290(7) of Mulla’s Hindu law it clearly goes to show that, the joint family members are all liable to repay the loan raised by their ancestors. Even under Article 240 the manager of joint family is empowered to raise debts for family purposes and family needs and family business. In such event all the coparceners are liable to pay off the debt. Under such circumstances even though the defendant No1 has raised loan over schedule A property, but all the family members are liable to share the suit land and repay and said loan as per the provisions of article 289 and 290(7) and 240 of Mulla’s Hindu Law. With these observations I am of the opinion that the lower court has erred in dismissing the suit in respect of landed property on the ground that, there was a loan over the schedule A property.” 8. The apprehension expressed by the learned counsel for the Appellant Bank that in view of the partition decree affecting the Suit Schedule A property the interest of the Bank would be materially prejudiced is illfounded since the observation of the lower Appellate Court extracted above fully takes care of Bank’s interest and therefore, the Appellant Bank is entitled to proceed against the Defendants and the Suit properties for recovery of the loan amount and all the interest that has accrued due on the same. 9. Except the aforesaid points, no other contention is advanced by the counsel for the Appellant. 9. Except the aforesaid points, no other contention is advanced by the counsel for the Appellant. That apart, the substantial questions of law framed at para 23 of the Appeal memo are all by and large only the substantial questions of facts and thus, I hold that no substantial question of law arises in the Appeal. Therefore, I pass the following: ORDER The Regular Second Appeal being devoid of merits is unworthy of admission and therefore, the same is rejected.