NDLI: Shankar Sakharam Kenjale (died) Through His Legal Heirs Vs. Narayan Krishna Gade and Another

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	(Abolition) Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Trusts Act, 1882 (2 of 1882) Bombay Paragana and Kulkarni Watans (abolition) Act, 1950 (60 of 1950) Bombay Hereditary Offices Act, 1874 (3 of 1874)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 s.3(3), proviso – Whether the permanent Mirashi tenant - mortgagor’s (respondents) right of redemption ceased to exist by virtue of resumption of the suit land under the Abolition Act and its subsequent re-grant in favour of the mortgagee (appellants) – Land in question was Paragana Watan property/Inam land governed by Bombay Hereditary Offices Act, 1874 – Watandar of suit land inducted permanent Mirashi tenant who executed a mortgage deed in favour of appellants – Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 came into force with effect from 25.1.1951 with a view to abolish Paragana and Kulkarni watans – Original watandar and Marashi tenant did not seek re-grant of suit land – Mortgagee relying on Government Resolution paid the requisite occupancy price and obtained re-grant of suit land in his favour in 1960 – Suit for redemption of mortgage filed by respondents – Maintainability of – Held: It is well-settled that the right of redemption under a mortgage deed can come to an end or be extinguished only by a process known to law, i.e., either by way of a contract between the parties to such effect, by a merger, or by a statutory provision that debars the mortgagor from redeeming the mortgage – Failure on the part of the mortgagor to pay the occupancy price and seek re-grant is not fatal to his rights as a Mirashi tenant as the tenancy in his favour continued to subsist despite the introduction of the Abolition Act – Consequently, the mortgage executed by him also survived the resumption of the suit land under the Abolition Act, and it cannot be said that the relationship of mortgagor-mortgagee ceased to exist by virtue of such Act – As per s.90 of the Indian Trusts Act, 1882, if a mortgagee, by availing himself of his position as a mortgagee, gains an advantage which would be in derogation of the right of the mortgagor, he must hold such advantage for the benefit of the mortgagor – In the instant case, the conditions stipulated under s.90 of the Indian Trusts Act were satisfied – The fact that the lessor/ Mirashi tenant did not claim re-grant is not relevant inasmuch the right of redemption of a mortgagor is not extinguished by virtue of re-grant in favour of the original defendant (mortgagee) inasmuch as the re- grant was obtained and the property was held by the original defendant for the benefit of the mortgagors – Therefore, the advantage derived by the appellants (successors of mortgagee) by way of the re-grant must be surrendered to the benefit of the respondents (Mirashi tenant-mortgagor) subject to payment of expenses incurred by them in securing the re- grant – High Court was justified in decreeing suit for redemption – Bombay Hereditary Offices Act, 1874 – Indian Trusts Act, 1882 – s.90
Judge	Hon'ble Mr. Justice Mohan M. Shantanagoudar
Neutral Citation	2020 INSC 338
Petitioner	Shankar Sakharam Kenjale (died) Through His Legal Heirs
Respondent	Narayan Krishna Gade And Another
SCR	[2020] 4 S.C.R. 223
Judgement Date	2020-04-17
Case Number	4594

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