Bishan Dev Singh vs Gopal Dev

J.V. Gupta, C.J.—This is plaintiffs'' second appeal whose suit for possession by way of redemption has been dismissed by both the Courts below.

The land, in dispute, originally belonged to Khair Mohammad who mortgaged the same in favour of Sher Mohammad on July 14, 1921. Sher Mohammad transferred the mortgagee rights in favour of Karim Baksh who further transferred his mortgagee rights in favour of Mst. Phazlan on January 12, 1927. Mst. Phaztan transferred her mortgagee rights in favour of Chaudhary Jai Ram Dass on payment of Rs. 2,700/ and delivered possession of the suit land along with other land. Thus, the said Chaudhary Jai Ram Dass became the mortgagee with possession in respect of the suit land. Mian Amar Singh, father of the defendant acquired ownership rights in the suit land from Khair Mohammad in lieu of the land jointly acquired and owned by Mian Amar Singh and his two brothers, Mian Sher Singh the father of the plaintiff and Mian Rup Singh. A civil litigation ensued between the abovesaid brothers and all the three brothers were declared as joint owners of the land by the order of High Court dated February 9,1961. According to the allegations of the plaintiff, Chaudhary Jai Ram Dass who was the mortgagee admitted that he had recently received Rs. 900/ from Gopal Dev, comortgagor of the suit land and in lieu thereof had effected redemption of the entire suit land. The defendant also admitted that he had got redeemed the entire land measuring 7 kanals 8 marlas on payment of Rs. 900/ to Chaudhary Jai Ram Dass. Thus, the plaintiffs were entitled to redeem and get possession from the defendant of their 7/18 share of the suit land on payment of Rs. 350/.

The aforesaid facts as such were controverted. The main controversy was as to whether the suit was within time or not. The view taken by the Courts below was that the limitation was 60 years from the original mortgage, i.e. July 14, 1921, and thus, the suit filed on August 12, 1974, was barred by time in view of the amended Limitation Act and, thus, dismissed the plaintiffs'' suit.

The learned counsel for the appellants submitted that the view taken by the Courts below, was wrong and illegal. The limitation was 12 years from the date for a nonredeeming comortgagor, to file a suit against a mortgagor who had redeemed the entire mortgage. Reference was made to Jamiat Singh v. State of Punjab, 1984 RRR 88 (P&H) : (1984) Punjab Law Journal 256.

On the other hand, the learned counsel for the defendantrespondent submitted that there was nothing on the record to show as to when the mortgage was redeemed by the defendant. Thus, argued the learned counsel, in the absence of any particular date, I the suit couldnot be held to be filed within 12 years from the date of redemption by the mortgagor. The learned counsel referred to Mange v. Des Raj,AIR 1967 Punjab 270.

After hearing the learned counsel for the parties I find that it was the common case of the parties before the Courts below that the defendant stepped into the shoes of the mortgagor in the year 1968. It has been observed by the trial Court that the facts are almost admitted by parties. The original mortgagee was Sher Mohammad and the date of mortgage is July 14, 1921. The defendant admittedly stepped into the shoes of the mortgages in the year 1968. Thus, the only question to be decided was whether the limitation is to be counted from July 14, 1991, or from the year 1968 when the defendant substituted the mortgagee. In view of this stand taken by the parties before the two Courts below, it couldnot be successfully argued on behalf of the defendant that there was nothing on the record to show as to when the mortgage was redeemed by the defendant. In any case, it was for the defendant to prove that the mortgage was redeemed 12 years prior to the filing of the suit. The proposition of law as enunciated in Jamiat Singh''s case (supra) couldnot be disputed. It was held therein that a redeeming comortgagor will be subrogated to the right of the mortgagee only to the extent necessary for his own equitable protection. A nonredeeming comortgagor has two distinct rights or remedies visavis the redeemed comortgagor, i.e., (i) to get the property redeeming within the period of limitation prescribed by Article 61 of the Limitation Act, 1963, and (ii) an equitable right to get possession of his share of the property on payment of his share of the mortgage money within twelve years from the date of the redemption of the hypothetic by the redeeming comortgagor.

Consequently, the appeal is allowed. The judgments and decrees of the Courts below are set aside and the plaintiffs'' suit is decreed for possession by way of redemption on payment of Rs. 350/ as the mortgage amount with no order as to costs.