Bhag Singh vs Mt. Santi

Teja Singh, C.J.—This second appeal arises out of a suit for possession of land. The plaintiff was Mt. Santi daughter of Mt. Raj Kaur and Thamman Singh. She alleged that her mother Raj Kaur had gifted the land to her on 20-11-2002 and the defendants who had taken possession of it had no right to it. The defendants are the collaterals of Thamman Singh. Their defence was that the possession of the land was lawful and, the ground that they gave in support of their contention was that a part of the land was previously mortgaged with Mt. Jai Kaur and a part with Mt. Punjabo and others and that they had redeemed both the mortgages on payment of Rs. 940/- that were due thereon. The Courts below have come to the conclusion that redemption of the previous mortgages by the defendants was not proved and accordingly decreed the plaintiff''s suit. The defendants have now preferred this second appeal.

The case rests on the question whether the appellants redeemed the mortgages of Mt. Jai Kaur and Mt. Punjab Kaur and others and if they did so they can claim the right of subrogation. As regards the factum of redemption the Courts below have, after considering the entire evidence, rejected the appellants'' contention and I find no good reason to differ from them. Counsel for the appellants drew my attention to the plaint, wherein it is mentioned that Mt. Punjabo''s mortgage had been redeemed and argued that in the face of this admission it did not lie in the plaintiff''s mouth to deny the redemption. Now all that was stated in the plaint was that Mt. Punjabo''s mortgage as was evidenced by entries in the revenue papers had been redeemed, but it was nowhere stated that the redemption had taken place at the instance of the defendants-appellants. Consequently this admission does not help the appellants in any way and in view of their failure to prove that they had redeemed the mortgages their possession of the land must be held to be without any right.

I may also mention that even if the defendants did redeem the previous mortgages they could not be subrogated to the rights of the mortgagees. According to S. 92 of the T.P. Act, the principles of which apply to this State as they do in the rest of India where the Act was not in force, the right of subrogation could be claimed by a person referred to in S. 91 who redeems a mortgage. Section 91 lays down that besides the mortgagor the following persons may redeem or institute a suit for redemption of the mortgaged property, viz. (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; and (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. Mr. Dalip Chand argued that since Mt. Raj Kaur was only the holder of life estate and the defendants were her husband''s collaterals and consequently reversioners of Mt. Raj Kaur, they had interest in the land. This contention is not correct, because the position of a reversioner of a widow is merely that of a person whose right can at best be described as spas succession is and he has no interest in the property during the life-time of the widow. This view is supported by a Division Bench decision of the Allahabad High Court, ''Ram Chandar v. Kallu, 38 All 497 in which it was held that the reversionary heirs of the deceased husband of a Hindu widow in possession as such of her husband''s property are not persons who within the meaning of S. 91 of the T.P. Act have such an interest in the mortgaged property, as would entitle them during the life-time of the widow to redeem a mortgage made by the husband. The same view was taken by a Bench of the Oudh Chief Court in AIR 1930 294 (Oudh) . This being the position, the defendants-appellants, if they redeemed the land at all, their act was that of a mere volunteer and as was held by the Madras High Court in Pichaiyappa Chetti and Another Vs. Govindaraju Mudaly and Others, a volunteer being a mere stranger to the mortgage and being under no legal obligation to pay the mortgage debt can have no right to redeem the mortgage.

Mr. Dalip Chand relied upon certain observations made by a learned Judge of the Madras High Court In (Kattukkavil Kizhukkepai) Nangunni Kovillamma and Others Vs. (Keli) Nedungadi, . In that case a person who had purchased a certain property redeemed the mortgage to which it was subject. Later on the purchase was set aside. The question arose whether the purchaser could be regarded as a person having interest in the property within the meaning of S. 91, T.P. Act. The learned Judge answered the question in the affirmative and after quoting a passage appearing in the judgment of ''Chama Sami v. P. Annandu'', 31 Mad 439 remarked as'' follows:

According to this passage the right of subrogation extends to strangers provided they are not mere volunteers, that is, persons who pay off other people''s debts without having any concern in them.

Later on the learned Judge added that the purchaser in that case was not purely a volunteer, "indeed, he was not even a stranger, possessing as he did, as a member of the tarwad an interest in the property to protect." Now it is true that the learned Judge used the word "stranger" but in view of his dictum that a stranger can have the right of subrogation provided he is not a mere volunteer, what he really meant by the word was a person who was not a representative of the mortgagor and not a person who had no interest in the property whatsoever. In the present case the appellants not only had no interest in the property, but were strangers, so even according to the observations relied upon by their counsel they could not redeem the mortgage.

Last of all it was argued by Mr. Dalip Chand that the redemption of the previous mortgages by the appellants should be regarded as transfer of their rights by the previous mortgagees in favour of the appellants and viewed in this light the appellants are entitled to urge that they should not be dispossessed until the amount on payment of which they redeemed the previous mortgages was paid to them. He has, however, not been able to convince me that when a person who redeems a mortgage without any right and according to law he cannot be subrogated to the mortgagee, can be regarded as a transferee from the mortgagee. He has not cited a single authority in support of his argument and my own opinion is that it goes counter to the very provisions of law regarding subrogation and hence it cannot be accepted.

The result is that the appeal fails and is dismissed with costs.