Bharpur Singh vs Mallan Singh and others

Teja Singh, C.J.—The facts relevant for the purposes of this appeal are as follows: One Waryam Singh made a sale of his land. His son brought a suit for a declaration that the sale would not affect his reversionary rights on the grounds that Waryam Singh was governed by custom, that the land was ancestral ''qua'' him and the sale was without consideration and necessity. The trial Court dismissed the suit and its decree was upheld by the Court of appeal. The plaintiff then came to the High Court on revision. The High Court allowed the revision petition and ordered that the plaintiff could get possession of the suit land from the vendees on payment of Rs. 1214/-. Both sides are agreed that Waryam Singh died during the pendency of the suit and consequently the plaintiff had converted his suit for declaration into one for possession. The present suit was brought on 5-7-2004. It was described as a suit for redemption and the plaintiff claimed that he was entitled to redeem the land on payment of Rs. 1214/-, which was found to be for necessity by the High Court in the previous case. Unfortunately neither the plaint not the written statement of the defendants was properly drafted. As I have already observed the heading of the plaint showed that it was a suit for redemption of a mortgage but there was no definite allegation that relationship of mortgagor and mortgagee subsisted between the plaintiff and the defendants nor was it stated how the mortgage had come into existence, and when. The defendants raised only two pleas; one that the proper court-fee had not been paid by the plaintiff and the second that the suit was barred by time. They never maintained in so many words that there was no mortgage and consequently the plaintiff had no right to bring a suit for redemption. All that was mentioned in the written statement was that the plaintiff should have executed the decree passed in the previous case and he had no right to bring the present suit after the lapse of such a long time. To make the matters worse, the trial Court did not make any effort to clear the points by taking the parties'' statement and contented itself by raising two issues; one regarding court-fee and the other regarding limitation. Both these issues were found against the defendants and the plaintiff''s suit was decreed. On appeal the learned District Judge disagreed with the trial Court as regards its finding on the second issue and in the course of his judgment he observed that no formal mortgage had been created by the High Court in the previous case, that the suit for redemption was not competent and that the only remedy open to the plaintiff was to execute the decree passed in the former suit.

My own opinion is that issue regarding limitation was redundant, because if a mortgage came into existence by virtue of the order of the High Court in the previous case, which was made on 2-9-1982, and the plaintiff was entitled to redeem the present suit for redemption was well within time, because the period for a redemption suit is sixty years. The only question that was important in the case was whether there existed a mortgage which the plaintiff could redeem by a suit. It is a pity that this point was not put in issue, but from the trend of the judgments of both the Courts below it is clear that the parties were conscious of it and it was definitely argued by them before the lower Courts. In the circumstances I proceed to give my finding upon this point.

As I have already observed, the plaintiff''s prayer in the previous case was that since the alienation made by his father was without consideration and necessity, the same be set aside and he granted a decree for possession of the land without any payment. The trial Judge as well as the Court of appeal found against the alienees on the question of consideration and necessity. The High Court, however, took a different view and held that consideration and necessity for the alienation had been established to the extent of Rs. 1214/-. Accordingly it ordered that the plaintiff could take possession of the land from the defendants alienees on payment of that amount. It also observed that because necessity had been established only for a part of the consideration, It appeared to the learned Judges to be just to convert the same into a mortgage and further observed that that part of the consideration which was found to be for necessity i.e. Rs. 1214/-, should be regarded as mortgage money. But these observations do not form the operative part of the order and they merely amount to an expression of opinion on the part of the learned Judges. The operative part is that the plaintiff can obtain possession of the suit land from the defendants-vendees on payment of Rs. 1214/-. This means that the High Court granted the plaintiff a decree in these terms. In addition, I may mention that in a suit of this kind it was not open to the High Court to create a mortgage in the plaintiff''s favour and in this view I am supported by the observation made by Johnstone J. in ''Fazal Ahmed v. Shahab Din'', 92 Pun Re. 1909. The learned Judge while discussing how decrees and orders should be made in a case arising out of suit where the plaintiff challenges an alienation made by a person governed by Customary Law on the ground that it is without consideration and necessity, thought it necessary to say what form the interference of Courts in a case of this kind should take. This is what he said:

When a sonless male proprietor, subject to Punjab Customary Law, sells a piece of ancestral land and upon a suit by a reversioner for a declaration that the sale, not being for consideration and necessity, does not affect his reversionary interests, the Court finds that only a portion of the consideration passed for a necessary purpose, that Court does not, and cannot, convert the sale into a mortgage, though the language used in judgments and decrees would sometime seem to imply that this was so. We are aware of no law under which a Court having, so far as concerns the plaintiffs'' rights, cancelled a sale, can create a mortgage for the sum of money found to be for necessity. What it does, is to find the sale invalid as against the plaintiff and then to rule that, inasmuch as he who seeks equity must do equity, plaintiff, who has benefited by the liquidation of debts that would have been binding on the estate in his hands, must, before taking possession after the alienor''s death, repay the benefit so received. The Courts are, therefore, wrong in their phraseology when they write of a reversioner in such a case redeeming the land after the death of the alienor.

The learned Judge also suggested that the decrees should be drawn up, in the following words:

It is hereby declared that the sale shall not take effect at all against the reversioners after the death of X but it is also declared that upon the death of X the reversioners shall not be entitled to possession of the land in suit until they have paid the sum of Rs. Y to defendants Nos.... or their successors in interest.

He also suggested a similar decree in a suit relating to a mortgage. I respectfully agree with these observations and my opinion is that if the decrees are drawn up in the form suggested in the above mentioned case, most of the difficulties experienced by litigants as well as Courts, would disappear.

It was stressed before me by the appellant''s counsel that in this case the defendants did not prove that the High Court judgment was followed by a decree. No doubt no copy of the decree was placed on the record but taking into consideration the usual course of events, I am entitled to presume that the judgment must have been followed by a decree. But even assuming that no decree was drawn up, this could not give the plaintiff a right to bring a suit for redemption which he could only do if there existed a mortgage between himself and the vendees. In view of the fact that I have already held that the judgment of the High Court in the previous case did not create any mortgage, whatever other remedy the plaintiff could possibly have, the suit for redemption did not lie. The result is that the appeal fails and is dismissed. In view of the peculiar circumstances of the case. I would order that the parties shall bear their own costs throughout.