1924 (4) TMI 3 - HC - Indian Laws

Summary

Issues:
1. Non-joinder of all proprietors in a suit for redemption.
2. Entitlement of plaintiffs to redeem the whole mortgage.
3. Title to the property by escheat.

Analysis:
1. The first issue in this case revolves around the non-joinder of all proprietors in a suit for redemption. The plaintiffs sought to implead absent proprietors, but the defendants opposed this application. The Court declined the prayer due to the defendants' opposition. The Court held that the defendants cannot now object to the non-joinder since they had previously opposed the addition of absent proprietors. Therefore, the suit for redemption can proceed without all proprietors being joined.

2. The second issue concerns the entitlement of the plaintiffs to redeem the whole mortgage. The defendants argued that as cosharers in the land, they should also have a say in the redemption process. However, the Court referred to Section 60 of the Transfer of Property Act and a Privy Council case to establish that an owner of a part of the equity of redemption can offer to redeem the entire mortgage. The Court emphasized that the defendants did not object to the redemption in previous stages of the case, and it was too late to raise the objection at a later stage. Therefore, the plaintiffs are entitled to redeem the whole mortgage.

3. The final issue pertains to the title to the property by escheat. The argument was made that the Crown did not acquire title to the property through escheat. The Court analyzed the nature of the tenure held by Kunj Behari Das and concluded that the property was a brit tenure, which is a service tenure and not necessarily permanent. As there was no evidence of the tenure being permanent, the Court held that the landlords were entitled to the reversion of the land upon Kunj Behari Das's death. Therefore, the decree for redemption was upheld.

In conclusion, the Court dismissed the appeal with costs, maintaining the decree for redemption and awarding mesne profits to the plaintiffs from the date of the suit based on their tender of redemption money to the defendants.