Ajaib Singh vs San Singh

G.R. Majithia, J.

The unsuccessful defendants have come up in regular second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Court, whereby the suit of the plaintiffs for declaration that the order of the Collector, Sunam dated January 31, 1973 redeeming the suit property was bad in law was decreed.

The Facts : Bhagwan Singh son of Jita Singh was the owner of the suit land measuring 37 Kanals 8 Biswas. He had mortgaged that land with Saon Singh, Mukand Singh, plaintiffs, Teja Singh defendant and Basant Singh for Rs. 2700/ vide mortgage deed dated 1.3.1994 B.K. (June 16, 1973). He created second mortgage in favour of the plaintiffs for a sum of Rs. 3,000/ on 7.2.2000 B.K. In lieu of the mortgage land, land measuring 43 Kanals 12 Marlas was allotted in consolidation. On the death of Bhagwan Singh, his inheritance devolved upon the plaintiffs, Mohinder Singh and Teja Singh (defendants No. 3 and 4 respectively) to the extent of 1/4th share each. Bhagwan Singh also owned 91 Bighas 2 Biswas of agricultural land and on his death, the plaintiffs became the owner of 1/2 share of that land. The successorsininterest of Bhagwan Singh did not partition the estate of Bhagwan Singh. Immediately after the devolution of the succession, Mohinder Singh, defendant No. 3, sold specific field numbers measuring 25 Kanals 2 Marlas vide sale deed dated June 9,1969, to Ajaib Singh and Naib Singh, defendants I and 2 (appellants). Defendants I and 2 filed an application before the Collector for redemption of the land comprised in Khasra Nos. 14/3, 15/1 and 14/2, under the Redemption of Mortgages Act, against the plaintiffs and one Inder Singh. Inder Singh did not contest the claim of defendants I and 2 and redeemed the land comprised in Khasra No. 14/2 on payment of Rs. 500/. The application for redemption of the mortgage was contested by the plaintiffs. The same was allowed by the Collector vide order dated January 31, 1973 and the land comprised in Khasra Nos. 14/3 and 15/1 measuring 6 Kanals was redeemed on payment of Rs. 142.52. P. The Plaintiffs challenged the order of the Collector dated January 31, 1973 in the civil suit giving rise to this second appeal on the ground that on the date when the application for redemption was filed, the mortgage did not subsist since it was created more than thirty years prior to the filing of the application for redemption and that they had become the owners of the mortgaged land. They further pleaded that Mohinder Singh defendant No. 3 was not competent to alienate specific field numbers to defendants 1 and 2 and on the strength of the sale deed, the latter were not entitled to get the land redeemed.

Defendants I and 2. contested the suit on the ground that the order of the Collector redeeming the land in suit was valid. They further alleged that after the death of the mortgagor, the mortgagees had inherited his estate to the extent of 1/2 share and integrity of the mortgage had broken and they were entitled to get the land redeemed, which they had purchased from Mohinder Singh, one of the mortgagees, who had become owner thereof.

On the pleadings of the parties, the following issues were framed by the trial Judge

(1) Whether the deceased Bhagwan Singh mortgaged land for Rs. 2700/; if so, with whom and what area? OPP

(2) Whether deceased Bhagwan Singh further mortgaged the land for Rs. 3000/ with the plaintiffs? OPP.

(3) Whether the suit land along with other land was allotted in lieu of the land mortgaged as alleged in para No. 5 of the plaint ? OPP.

(4) Whether the order of the Collector dated 31.1.1973 is illegal and against facts OPP.

(5) Whether the plaintiffs had become the owners of the land mortgaged and no right of redemption existed at the time of filing the application for redemption. OPP.

(6) Whether Mohinder Singh was in exclusive possession of the suit land and as such could alienate specific Khasra numbers ? OPD.

(6A) Whether the plaintiffs consented to the sale made by Mohinder Singh, and as such cannot contest the same. OPD.

(7) Whether the suit is bad for nonjoinder of necessary parties? OPD.

(8) Whether the suit for declaration is not maintainable qua Khasra numbers 61/15/1 ? OPD.

(9) Relief.

The trial Judge answered issue No. 1 in favour of the plaintiffs, holding that the land was mortgaged by Bhagwan Singh with them, Teja Singh defendant and Basant Singh for Rs. 2,700/; issue No. 2 was decided in favour of the plaintiffs and it was held that vide mortgage deed (copy Exhibit PW 3/1) the land was mortgaged by Bhagwan Singh for Rs. 3,000/ issue No. 3 was decided in favour of the plaintiffs and it was held that the land in suit was allotted in consolidation in lieu of the land mortgaged by Bhagwan Singh, the mortgagor, issues Nos. 4 and 6 were disposed of together and it was held that defendant No. 3 could not alienate specific field numbers without the consent of the other cosharers since he was not in possession of the same and could not pass on a valid title to defendants No. 1 and 2 and the order of the Collector redeeming the land was invalid; issue No. 5 was answered against the plaintiffs and it was held that the application for redemption was filed within limitation and the mortgagee had not become the owner the reof by efflux of time and that the mortgage deed dated 722000 B.K. was a fresh mortgage and was not in continuation of the previous mortgage deed dated 131994 B.K. (June 14, 1937); issue No. 6A was answered against the defendants for want of proof, issue No. 7 was answered against the defendants and it was held that Surjit Singh was not a necessary party; issue No. 8 was decided against the defendants and it was held that the land comprised in Khasra No. 15/1 was not in cultivating possession of Surjit Singh at the time of filing of the suit and the suit for declaration was competent. The trial Court ultimately decreed the suit.

The plaintiffs did not assail the finding of the trial Judge under Issue No. 5 wherein it was held that right of redemption subsisted on the date of filing the application for redemption under the Redemption of Mortgages Act by defendants No. 1 and 2. However, defendants No. 1 and 2 challenged the judgment and decree of the trial Court in first appeal on the ground that during the pendency of the suit, the estate of the mortgagor Bhagwan Singh was partitioned amongst his heirs by the Assistant Collector I Grade, Sunam vide order dated May 2, 1977 and the land sold by defendant No. 3 to the appellants/defendants No. 1 and 2 was allotted to him in partition. In view of this, no fault can be found with the transfer of specific field numbers by defendant No. 3 to defendants No. 1 and 2, nor with the order of the Collector dated January 31, 1973, allowing redemption of the land comprised in Khasra Nos. 14/3 and 15/1.

The first appellate Court negatived the contention of defendants No. 1 and 2 that they had purchased the share of Mohinder Singh defendant No. 3, on whom 1/4th share of the estate of Bhagwan Singh deceased had devolved by succession and that part of the land sold to them was under mortgage with the plaintiffs and they had validly redeemed it under the order of the Collector dated January 31, 1973. This contention was negatived on the ground that the vendor Mohinder Singh defendant No. 3, was not in possession of specific field number and a cosharer not in possession can sell his own share in the joint property and not any specific field numbers and the sale was held to be invalid. The second submission of defendants No. 1 and 2 for taking subsequent events into consideration was also negatived by the first appellate Court. It was urged that the estate of Bhagwan Singh mortgagor was partitioned by the Revenue Authorities and the land sold to them by Mohinder Singh defendant No. 3, one of the heirs of Bhagwan Singh, was allotted to him in partition. Alongwith the application for taking subsequent events into consideration, they also produced a certified copy of the instrument of partition prepared by the Revenue Authorities under Section 121 of the Punjab Land Revenue Act on the record of the first appellate Court.

The approach of the first appellate Court is unsustainable. Admittedly, 1/4th share of the estate of Bhagwan Singh deceased (mortgagor) had devolved upon Mohinder Singh defendant No. 3 and the latter sold 25 Kanals 2 Marlas of land to defendants No. 1 and 2 vide sale deed dated June 9, 1969. The land sold was inclusive of the land under mortgage with the plaintiffs and in law equity of redemption of the land under mortgage was transferred to the vendee. Defendants I and 2 were entitled to get the land redeemed under mortgage with the plaintiffs. Collector, Sunam, vide his order dated January 31, 1973, under the Redemption of Mortgages Act, allowed defendants I and 2 to redeem the land. The order of redemption was invalidated only on the ground that Mohinder Singh vendor could not sell specific filed numbers since he was not in possession of the same he could alienate only his, share, in the joint land. It appears that during the pendency of the suit (filed on February 20, 1973) giving rise to this appeal, heirs of Bhagwan Singh deceased (mortgagor), moved the revenue authorities on July 20, 1973, for partition of the estate of Bhagwan Singh, which had devolved upon them by succession. The final order of partition was made by Assistant Collector I Grade, Sunam on May 2, 1977 and the instrument of partition was prepared under Section 121 of the Punjab Land Revenue Act and the land sold by Mohinder Singh, defendant No. 3, under sale deed dated June 9, 1969, was allotted to him in partition. The instrument of partition indicates that apart from other land, the land comprised in Rectangle No. 61 Khasra Nos. 14/3, 15/1 and 14/2/2 was allotted to him in partition. This very land was the subjectmatter of the order of redemption passed by the Collector under the Redemption of Mortgages Act. They very basis on which the sale made in favour of defendants No. 1 and 2 and the order of the Collector allowing redemption of the land was invalidated ceased to exist by virtue of the final order of partition passed by the revenue authorities. The parties to the lis are agreed that the final order in partition proceeding was passed. The appellate Court can take notice of subsequent events to shorten litigation and for doing substantial justice to the parties, because by taking these events into consideration, the original relief claimed in the suit has become inappropriate. As observed earlier, the vendor was allotted that very land in partition which he had sold to defendants No. 1 and 2 and they being the owners had redeemed the mortgage. The flaw which was pointed out by the Courts below in the order of redemption passed by the Collector ceased to exist when the land sold by Mohinder Singh defendant No. 3, was allotted to him in partition and the suit for challenging the order of redemption was not maintainable, after the final order of partition was passed. The apex Court in M/s. M. Laxmi and Co. v. Dr. Anant R. Deshpande and another, AIR 1973 S.C. 171, held that the Court can take notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. It will be useful to reproduce the relevant observations of their Lordships :

"It is true that the Court can take notice of subsequent events. These cases are where the Court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such change. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court can take notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event."

Mohinder Singh, defendant No. 3 (vendor) was one of the heirs of the mortgagor and inherited a portion of the mortgaged land. The plaintiffs were the mortgagees and heirs to the mortgagor. When the mortgagee becomes an heir to the mortgagor and inherits a portion of the mortgage, it cannot be said that the integrity of the mortgage has not been broken. Defendants No. 1 and 2 were entitled to redeem their share of the mortgaged property by paying a proportionate share of the mortgage money. Reference can usefully be made to a Division Bench decision of the Madras High Court reported as Ramaswami Reddiar v. Peria Veera Kudumban and others, AIR 1924 Madras 364, wherein it was held as under :

"The fusion of rights should be by act of parties. What is necessary is that the mortgagee should have acquired the share of a mortgagor. Whether he acquires it by purchase or by inheritance or otherwise, the result is the same and the mode of acquisition is immaterial."

A Division Bench of the Allahabad High Court in Zafar Ahsan and others v. Zubaida Khatun and others, AIR 1929 All. 604, also took similar view and it was held thus :

"When the mortgagee becomes an heir to the mortgagor and inherits a portion of the mortgage it cannot be said that the integrity of the mortgage has not been broken."

Moreover, the principle mentioned in Section 43 of the Transfer of Property Act will also be attracted to the instant case. When a person transfers property to which he has no title, on a representation that he is a person having transferable interest therein, and acting on that representation, the transferee takes an interest for consideration when these conditions are satisfied and the transferor subsequently acquires the property, the transferee becomes entitled to it. Reference can usefully be made to Peyare Lal v. Mt. Misri and others, AIR 1940 All. 453 (DB), wherein it was held thus :

"Where a partner in a firm sells the property of the firm in his own right and not on behalf of the other partners of the firm and subsequently after dissolution of the partnership same property is allotted to him, the case falls within the purview of Section 43 and the vendee''s tide remains intact."

Looking from any angle, no fault can be found with the transfer of land made by Mohinder Singh defendant No. 3 in favour of defendants No. 1 and 2 and the order of'' redemption passed by the Collector redeeming the suit land in favour of the vendees.

In fairness to the learned counsel for the respondents, his submissions may be noted. He submitted that the right of redemption had been lost since defendants No. 1 and 2 did not move the competent authority within the period of limitation. The submission is devoid of any merit for the following reasons

(i) The trial Court gave a firm finding that the mortgage dated 7 2 2000 B.K. was a fresh mortgage and was not in continuation of the previous mortgage dated 1.3.1994 B.K. (June 14, 1937) and suit was filed on February 20, 1973 before the expiry of thirty years and that the plaintiffs had not become the owners of the suit land and that the right of redemption subsisted on the date when the application for redemption was filed before the Collector under the Redemption of Mortgages Act;

(ii) Assuming that the second mortgage was in continuation of the first mortgage, even then the application to redeem the mortgaged land was filed before the expiry of the period of limitation. The first mortgage was created on 1.3.1994 B.K. (June 14, 1937) and the second mortgage was created on 7.2.2000 B.K. (1943). The Limitation Act, 1963 (for short, the Act) was to come into force on such date as the Central Government by notification in the Official Gazette may appoint. Vide Government Gazette dated November 9, 1963, the date appointed is January 1, 1964. Article 61 of the Act replaces Articles 148 and 134 (insofar as they relate to mortgages) of the Limitation Act, 1908, with the modification that in respect of suits for redemption the period has been reduced from sixty years to thirty years. Section 30 of the Act deals with a situation where a suit may be within limitation according to the Act of 1908 and may become barred by limitation because of the shorter period of limitation prescribed therein for such suits. It is to remove this hardship that Section 30 has been Incorporated. If the suit was not barred under the repealed Limitation Act, Section 30 comes into step and the suit may be instituted within a period of seven years next after the commencement of the Act (i.e. January 1, 1964). Thus, in the instant case, the plaintiffs could redeem the mortgaged land within 30 years when the right to redeem accrued. The first mortgage was created in 1937 and the second mortgage was created in 1943. The application for redemption of the mortgage was filed on July 1, 1971, within the prescribed period of limitation. Thus, neither on facts nor in law, the submission is tenable.

For the reasons aforesaid, the appeal succeeds and is allowed, the judgments and decree of the Courts below are set aside and the suit is dismissed, but with no order as to costs.