THACKER PRAGJI ANANDJIversusMANSUKH AMBALAL (DEAD) THROUGH HIS HEIRS AND LRS. AND ANR.

A                       THACKER PRAGJI ANANDJI
                                   v.
                   MANSVKH AMBALAL (DEAD) THROUGH
                      HIS HEIRS AND LRS. AND ANR.

                                NOVEMBER 28, 1996
B
                  [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]

             Hilldu Law-Joint Family Properties-Pa1titio1l-Two brothers P alld
    D succeeded Joillt Family Properties viz. two houses-[) alld his father
C mortgaged properties to respondent-Mortgaged redeemed zmder com-
  promise-Findillgs recorded by coultS below that collsideratioll for redemptioll
  of the mo1tgage was by hypot/1ecatioll-Questioll whether the appellallt was
  elltitled to the partitioll of the properties ill two equal shares alld allotment of
  Dile such share-Ill view of the finding that both the houses are joint family
  properties succeeded by P alld D the brothers, they are liable to parti-
D tion-However, it would be subject to the redemptioll of the mortgage.
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of
     1981.

          From the Judgment and Order dated 13.2.80 of the Gujarat High
E    Court in Second Appeal No. 444 of 1975.

             Vimal Dave for the Appellant.

             S.C. Patel for the Respondents.

F            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
G    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 Am-
H    halal, the first defendant. Pragji had filed Suit No. 66/69 for a declaration
                                          336
             1BACKER PRAGn ANANDn V. MANSUKH AMBALAL                      337

that the second mortgage dated September 30, 1958 executed by Damji A
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 B
would be that House Nos. 247 & 248 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 C
entitled to the partition of the properties in two equal shares and allotment
of one such sh&re? 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 executed in favour of
Mansukhlal, the first defendant. Accordingly, there is a preliminary decree D
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 E
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 registration and the appellant may seek appropriate direction
from the trial Court for payment.
                                                                                 F
         The appeal is accordingly allowed. But, in the circumstances, without
costs.

T.N.A.                                                       Appeal allowed.