TaxTMI 
TaxTMI 
1985 (7) TMI 376
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....ons by name Dnyanu Krishna Mhoprekar and Ananda Santu Mhoprekar (Defendant No. 2) mortgaging their share in the above lands with possession by way of security for a loan of ₹ 1000 which they borrowed under the mortgage deed. The mortgage was for five years. The mortgagees were entitled to appropriate the income from the mortgaged property towards interest. Dnyanu Krishna Mhoprekar, one of the mortgagees, died in or about the year 1953 leaving behind him Jayasingh Dnyanu Mhoprekar, (Defendant No. 1) as his heir and the 'Karta' of his joint family, Bandu Babaji Patil, one of the mortgagors, referred to above, died in the year 1955 leaving behind him his son plaintiff No. 2 and two other sons as his heirs. Plaintiff No. 2 is the 'Karta' of that branch of the family. The remaining one-half share in the lands comprised in the above Survey Numbers belonged to Ganu Vithu and Pandu Vithu who were members of the other branch of the family of the mortgagors. They had also mortgaged their share in favour of one Pandu Krishna who was no other than the brother of Dnyanu and the father of Ananda Santu Mhoprekar (Defendant No. 2). Defendant No. 2 had, however, been given in....
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....er the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 (Bombay Act No. 50 of 1950) (hereinafter referred to as 'the Act') all the Paragana Watans were abolished. Section 3 of the Act provided : "3. With effect from and on the appointed day, not withstanding anything contained in any law, usage, settlement, grant, sanad or order- (1) all Paragana and Kulkarni watans shall be deemed to have been abolished; (2) all rights to hold office and any liability to render service appertaining to the said watans are hereby extinguished; (3) subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land: Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of section 5 of the Watan Act or the rights of an alliance thereof or any person claiming under or through him; (4) all incidents appertaining to the said watans are hereby extinguished." Section 4 of the Act provided that a watan land resumed under the ....
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....d be granted in favour of the permanent Mirasi tenants who were in actual possession of such lands. In those proceedings the plaintiffs who were permanent Mirasi tenants of the half share in the lands covered by the Survey Numbers in question deposited in the Government Treasury on July 29, 1963 as per challan Ex. 45 ₹ 182.41 being the requisite occupancy price equivalent to 24 times the assessment requesting that the grant should be made in their favour. The defendants and Pandu Krishna who were in possession of the entire extent of land covered by the Survey Numbers also deposited the occupancy price claiming the whole land, that is, both the one-half share of the plaintiffs which had been mortgaged by them and the other half share which Pandu Krishna had acquired from Ganu Vithu and Pandu Vithu the other branch of the plaintiff's family. The Prant Officer instead of granting the one-half share of the land which belonged to the plaintiffs in their favour ordered that the entire extent of land measuring 22 Acres and 13 Gunthas should be granted in favour of the defendants and Pandu Krishna as they were in possession of the whole land by his order dated February 5, 1964 i....
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....ghts of the tenants in the watan lands were allowed to subsist even after the coming into force of the Act and the consequent abolition of the watans by virtue of section 8 of the Act. The question is whether the position would be different because they had mortgaged land with possession on the relevant date. At this stage it is appropriate to refer to section 90 of the Indian Trusts Act, 1882 which reads as under :- "90. Advantage gained by qualified owner-Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage." Illustrations (b) and (c) to section 90 of the Indian Trusts Act, 1882 read thus: (b) A village belongs....