Gita Ram vs Kanwar Lal Amol Singh and others

Harbans Lal, J

This is a regular second appeal against the judgment and decree of the Additional District Judge, Ambala, dismissing the appeal of the Defendant-Appellant which had been tiled against the preliminary decree passed by the Subordinate Judge, First Class, Jagadhari, by means of which the suit of the Plaintiff-Respondent Kanwar Lal, for redemption of one-third share of the land and one-third share of Kothi, erected on the said land, for possession by way of redemption had been decreed on payment of Rs. 6, 60/.

The facts, in brief, are as under. Land measuring 59 bighas 16 biswas, the details of which are mentioned in the heading of the plaint, was owned by one Didar Singh, who mortgaged the same in favour of Baldev Dass and Lachaman Dass by means of a registered mortgage deed dated December (sic) 1878 (Exhibit P. 11), for Rs. 4,990/-. As a result of a private partition between the two mortgagees in the year 1886, the mortgagee rights in the said land fell to the share of one of them, that is. Baldev Dass. This is evidenced by mutation dated June 22, 1887 (Exhibit P. 25). These mortgagee rights devolved on Dwarka Dass and Paras Ram, sons of Baldev Dass after the latter''s death. One Banarsi Dass obtained a money decree and got these mortgagee rights attached and sold through Court-auction and the same were purchased by Lachhman Singh, the father of the Plaintiff Respondent Kanwar Lal Amol Singh on December 20, 1919. A copy of the warrant of possession issued in favour of the Plaintiff''s father is Exhibit P. 3 and a copy of the Dakhal Nama evidencing the delivery of possession to him is Exhibit P. 5 and mutation No. 87. Exhibit P. 19, in respect of the same was attested on December 26, 1919. Mussammat Pisto, widow of Prabhu Dayal, the predeceased son of Paras Ram, one of the mortgagees, submitted an application under Order XXI Rule 100, CPC (hereinafter to be referred to as the Code), in the year 1920, with the prayer that she was owner of one-third share of the land (which is the land in dispute), that she was not a party to the decree in respect of which the entire land including the land in dispute, had been sold and that she was entitled to the restoration of the said land. This application was allowed on October 18, 1920 and the order to this effect was passed a copy of which is Exhibit P. 45 In pursuance of this order, possession of one-third share of the land, that is the land in dispute, was delivered to her on October 18, 1920 and mutation No. 371 in respect of the same was sanctioned April 30, 1925, and a copy of the same is Annexure P. 17. Lachhman Singh, father of the present Plaintiff-Respondent Kanwar Lal, died in the year 1921 and his rights in the land including the land, in dispute, devolved upon him and his brother regarding which mutation, Exhibit P 21 was sanctioned. On May 31, 1946, the Plaintiff purchased the equity of redemption in the entire land including the land, in dispute from, Shiv Narain Singh son of the original owner Didar Singh by means of a sale deed for Rs. 4,500/-. Consequently, the mortgagee rights merged with the equity of redemption so far as two third share of the land was concerned and with regard to one-third share of the land, that is, the land in dispute, the Plaintiff claimed the equity of redemption. The present Appellant, Gita Ram, is admittedly the predecessor-in interest of Mussammat Pisto.

The present suit was filed by the Plaintiff-Respondent, Kanwar Lal Amal Singh for possession of the one-third share of the land and the Kothi constructed thereon, by redemption, without payment of any amount, on the ground that the mortgagees had enjoyed profits and usufruct from the property in excess of the amount that was due to them under the mortgage and that u/s 30 of the Punjab Relief of Indebtedness Act, 1934 he was not liable to pay any amount. This suit was contested by the present Appellant. Inter alia it was contended that Mussammat Pisto from whom he got the land, in dispute, was in possession of the same as owner and, therefore, there was no question of redemption and that the suit was time barred. It was also pleaded that according to the terms of the mortgage deed he was entitled to interest at the rate of two per cent and after deducting the annual amount of Rs. 198/- in lieu of profit, was entitled to interest at the rate of Rs. 1,000/- per year, in the alternative. A number of other ples(sic) were also raised which are not very relevant for the purpose of the decision of this appeal. On the pleadings of the parties the following issues were framed ?

Whether Shiv Narain Singh was the successor of Didar Singh and he sold the land, in favour of the Plaintiff, as alleged in in para (paragraph?) 19 of the plaint ?

Whether the Plaintiff is the owner of 2/3rd share of the mortgage rights?

Whether the Plaintiff is entitled to get remaining 1/3rd share redeemed ? If so, on payment of what amount ?

Whether the Defendants received profits from the land in suit ? It so, to what amount and to what effect ?

Whether the suit for redemption is within limitation ?

Whether the Plaintiff is the mortgager of the Kothi or has the equity of redemption along with the land ?

Whether the value for purposes of Court fee and jurisdiction is correctly fixed ? If not what is the correct value ?

Whether the Defendants are entitled to get interest more than 71/2 per cent. If so, to what rate and what amount ?

Whether Mussammat Pisto became owner of one-third share which she got from the Plaintiff as alleged ?

Whether the parties divided the land and Kothi as alleged in para (paragraph?) 12 of the written statement of Shri Gita Ram ? If so, to what effect and what were the shares ?

Whether the present suit is res judicate as alleged in para (paragraph?) 14 of the written statement ?

Whether Kothi was sold in auction sale as alleged in para (paragraph?) 1(sic) of the plaint and what rights were acquired by Lachhman Singh in it ?

Whether the land in suit fell to the share of Baldev Dass as alleged in para (paragraph?) 5 of the plaint ?

Whether Paras Ram and Dawarka Das mortgaged their mortgagee rights with Jahangiri Mal as alleged in para (paragraph?) 6 of the plaint ?

Whether Lachhman Dass became the successor-in-interest of Jahangiri Mal ? If so, to what effect and with what rights ?

Whether Shrimati Pisto got here mortgagee rights by suit as alleged in para (paragraph?) 12 of the plaint. It so, to what effect ?

Whether the Defendant and Shrimati Pisto partitioned the land as alleged in para (paragraph?) 13 of the plaint ?

What are the shares of the Defendants and to what amount they are entitled inter se ?

Whether the burden of the mortgage of Padam Parkash and Lachhman Dass is on the share of the Plaintiff as alleged in para (paragraph?) 21 of the written statement ?

What is the effect of purchase of land by Jagmal as alleged in para (paragraph?) 23 of the plaint ?

Whether the principles of Section 30 of the Punjab Relief of Indebtedness Act apply as alleged in para (paragraph?) 2(sic) of the plaint ?

Whether the Defendants are liable to give account to the Plaintiff of the profits realised by them ? (objected to)

Relief.

The suit was decreed by the trial Court and a preliminary decree was passed. It was held that the original mortgage of the entire amount was for Rs. 4, 990/- and thus the one-third of the same in respect of the one third share of the land, that is the land in dispute, came to Rs. 1.663.33. It was also held that Section 30 of the Punjab Relief of Indebtedness Act was applicable and that the Defendant mortgagee was entitled to only twice the amount of the principle; the total being Rs. 3326 66. In addition. Rs. 3,333 34 were allowed as improvement in lieu of one-third of the construction of Kothi by mutual agreement of the parties. Thus it was decreed that the Plaintiff Respondent was entitled to redeem the suit land including the Kothi on payment of Rs. 6,63/- only. Against this judgment and decree. One appeal vide Appeal No. 13 of 1963 was filed by the Plaintiff. Another appeal was filed by the present Appellant vide Appeal No. 20 of 1963. Both the appeals were decided by one judgment of the learned Additional District Judge, Ambala, vide his judgment dated February 6, 1964. The main judgment was given in Appeal No. 13 of 1963 filed by the Plaintiff-Respondent, Kanwar Lal Amal Singh and a short judgment was passed in the other appeal, that is, the appeal which had been filed by the present Appellant, Gita Ram. The Plaintiff did not file any appeal. However, the present regular second appeal has been tiled by the Defendant-mortgagee.

A preliminary objection has been raised that the appeal is time-barred Relevant facts, in this regard, are that both the appeals by the learned Additional District Judge, Ambala were decided on February 6, 1954. Application for certified copy of the main judgment (on Appeal No. 13 of 1963) was filed on February 7, 1964(sic). The certified copy was ready on March 23, 1964 and the same was despatched to the Appellant on March 23, 194(sic). The present appeal was tiled on July 9, 1964. The Appellant filed another application for a certified copy of the judgment and decree in his appeal on June 2, 1964, which was delivered on June 12, 194(sic). According to Mr. Anand Swaroop, the Learned Counsel for the Appellant, it was necessary to obtain a certified copy of the main judgment as well as the short judgment and decree for the purpose of filing the present appeal. Thus, according to him, the Appellant is entitled to the exclusion of the period spent in obtaining the copy of the judgment of the appeal filed by the Plaintiff from February 7, 1964 to March 23, 1964, that is forty-five days. The present appeal was filed on July 9, 1964 when the High Court was closed for Summer Vacation. this Court was closed from June 1, 1964 to July 10, 1964. Under the circumstances, it is contended the present appeal is within time and that the Appellant was fully justified in applying for a certified copy of the short judgment and decree in his own appeal in the Court of the Additional District Judge within the extended period of limitation. For this purpose, reliance has been placed on Batan Singh and Others Vs. Nathu Birju, There is a great substance in this contention and the Appellant is entitled to the exclusion of the time spent in obtaining copy of the main judgment in the other appeal before the Additional District Judge, Ambala, as the same was necessary for the purpose of filing the present appeal. The Learned Counsel for the Respondent No. 1 has not been able to rebut this contention. Therefore, this appeal is held to be within time and as such, the question of condoning the delay u/s 5 of the Limitation Act does not arise and Civil Miscellaneous Application No. 1639 of 1964, is dismissed an infructuous.

The Learned Counsel for the Appellant has stressed that the application under Order XLI Rule 27 and Order VI Rule 17 of the Code, vide Civil Miscellaneous No. 3255-C of 1971, should be allowed and the certified copies of the order of the Collector dated February 13, 1945 and the order of the Commissioner dated September 20, 1946, which are on the record, be allowed to be adduced in evidence. In order to appreciate this contention, some facts, in brief, may be noticed. Shiv Narain Singh, son of the original owner Didar Singh, filed an application before the Collector in the year 1938 for restitution of the land under the mortgage including the land in dispute, under the Restitution of Mortgage Lands Act, 1938. The same was lost and the record in the Court of the Collector had been stolen. Another application was made in the year 1945 and the same was treated as re construction of the original application. In the said application, it was held by the Collector that the mortgagee, after the expiry of fifty years had come to an end and the mortgagee rights had been extinguished. Against this order, the present Plaintiff-Respondent went in appeal before the Commissioner. The Commissioner called a report from the Collector on some matter. When the proceedings for the purpose of the report were pending before the Revenue Assistant, the Plaintiff purchased the mortgagee rights from the owner the said Shiv Narain Singh had submitted an application before the Revenue Assistant that he wanted to withdrew his main application for restitution of the mortgage. On this, the Revenue Assistant, Ambala, filed the proceedings on June 6, 1946 and on September 20, 1946, the Commissioner passed the order, the operative part of which is as under:

As the original case has been withdrawn, the question of appeal does not arise. I, therefore, order it to be filed.

The plea of the Learned Counsel for the Appellant is that the Collector had in the first instance, passed the order allowing restutition of the mortgage under the Restition of Mortgaged Lands Act, 1938. Though appeal had been filed against the same, but the said appeal was dismissed by the Commissioner and, therefore, the order of the Collector, dated February 13, 1945, was operative. Since that order, the mortgage was not subsisting and, therefore, the Plaintiff could not file a suit for possession by way of redemption. Consequently, the suit having been filed more than sixty years in the year 1961, the suit was clearly time-barred. I do not agree with this contention. The order of the Commissioner dated September 20, 1946, was to the effect that as the original application had been withdrawn, therefore, the appeal had become infructuous. Thus, according to the order of the Commissoner the original order passed ay the C Hector, bad also gone out of existence as the main application had been withdrawn. The Appellant cannot take advantage of these proceedings before the Collector or the Commissioner in order to show that there was no mortgage after the order of the Collector, Besides, no such plea had been taken by the Appellant in his written statement, nor was any such application to produce additional evidence made in the appeal before the Ad Additional District Judge, Ambala. There is no justification for allowing this application under Order XLI Rule 27 of the Code at this stage or to allow amendment of the written statement the case made out in the written statement was clearly to he effect that the suit land was under mortgage, but the same was time barred. The Appellant cannot be allowed to take absolutely a different position at this related stage. Under the circumstances. Civil Miscellaneous Application No 325(sic)-C of 1971 is dismissed.

The Learned Counsel for the Appellant has then vehemently contended that the findings of the Courts below in respect of issue No. 5 regarding limitation cannot be sustained and is based on wrong interpretation of law and the documentary evidence. The admitted facts are that in the first instance, the first mortgage deed, Exhibit P. 11, was executed on December 11, 1878. The suit out of which the present appeal has arisen was filed in the year 1961. Thus the suit for redemption was clearly filed long after the period of limitation that i sixty years. Both the Courts below have held the suit within limitation holding that the mortgagees had acknowledged the factum of mortgage in the two transfer deeds, Exhibits P. 41, dated March 24, 1914 and P. 9, of the year 1928. Exhibit P. 9 is the certified copy of the registered conveyance deed dated April 10, 1928, by means of which the mortgagee rights were-transferred by Gopi Chand, Mahabir Prashad and Mussammat Pisto, the mortgagee in respect of the land, in dispute and some other land in favour of Pandit Sita Ram and Pandit Ram Rattan, for Rs. 5,000/-. In this deed, the detail of the land is mentioned and it is also prescribed that the said land is in their possession under mortgage and that the same is being transferred to Pandit Sita Ram and Pandit Ram Rattan. Exhibit P. 41 is a certified copy of the registered conveyance deed dated March 24, 1914, by means of which Paras Ram and Dawarka Dass (admit-dly the mortgagees) transferred their mortgagee rights in the land, including the land, in dispute, in favour of Jahangiri Mal for Rs. 5,000/- In this deed it is mentioned that this land was under mortgage with them from (sic)idar Singh on the basis of a registered mortgage deed dated December 11, 1878. The mortgage amount is also mentioned and so also is mentioned the rate of interest which will be accruing to the mortgagees. The important question is whether the mention of the facts in these two documents regarding the first mortgage of the land, in dispute, the date of the mortgage and the mortgage money etc., amount to acknowledgement of liability in respect of the mortgage u/s 18 of the Limitation Act 195(sic) (equivalent to Section 19 of the Limitation Act, 1898). The scope of this provision has been interpreted by the supreme Court in Tilak Ram and Others Vs. Nathu and Others, . In Tilak Ram''s case (supra), documents of somewhat similar nature called for interpretation on the point whether they were tantamount to acknowledgement or not and it was held as follows:

The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship, it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a farfetched process of reasoning.

Do the statements relied on admit or acknowledge subsisting mortgages and the right to redeem or the liability of the maker thereof to be redeemed ? Exhibit B. dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200/ . The document referred only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharam das it does so for the purpose of describing the interest Parmesh-wardas was mortgaging in favour of Badam and of his own right redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot be said to be one made with the intention of admitting the jural relationship between him as the successor-in-title of Dharamdas and the successor-in title of the said Teja. The second document Exhibit X, dated August 16, 1902 was made between Parmeshwardas on the one one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession of Dharamdas''s successor-in-title, the deed of mortgage dated April 6, 1902 (Exhibit E) and the fact that he was by this deed selling his mortgage rights for Rs. 1.290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Exhibit P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the Plaintiffs was made with a view to trace their own rights as against the Defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages, but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the Plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be availed of as an acknowledgment of subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed

The Learned Counsel for the Respondents, on the other hand, has tried to distinguish this judgment from an earlier decision of their Lordships of the Supreme Court in Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, Both Tilak Ram''s case and Shapoor Fredoom Mazda''s case (supra) were cited in Gurbux Singh and Another Vs. Smt. Chinti and Others, before a Division Bench of this Court wherein it was held as follows:

The learned Single Judge has relied on an earlier judgment of the Supreme Court in Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, which was followed by their Lordships in Tilak Ram and Others Vs. Nathu and Others, . The general propositions governing acknowledgment laid down in Shapoor Fredoom Mazda''s case (supra) were actually applied by their Lordships in Tilak Ram and Others Vs. Nathu and Others, The general observations in Shapoor Fredoom Mazda''s case (supra) cannot, therefore be used by the Learned Counsel for the Respondents in support of his plea that the mere description of the property as mortgages rights gifted by Inder Singh in favour of Jagir Singh amounted to an acknowledgment of the right of Shrimati Bishni to redeem the land from Inder Singh.

In Gurbux Singh''s case (supra) one Inder Singh had made a gift of his entire land including the mortgagee rights in favour of Jagir Singh. In this gift deed, the mortgagee rights were described It was held that this description did not amount to an acknowledgment and the law settled by the Supreme Court in Tilak Raj''s case (supra) was followed. In my considered opinion, the recitals in Exhibit P. 9 and Exhibit P. 41 regarding existence of mortgagee rights in the land, in dispute, and their transfer by means of those deeds are only descriptive of the interest and expression of jural relationship between the parties and do not constitute an acknowledgement. I also find support for this view from a decision of the Madras High Court reported in C. Veerabahu Pattar Vs. P. Eswara Pillai, Under the circumstances, I reverse the findings of the Courts below in respect of issue No. 5 and hold that the Plaintiff Respondent Kanwar Lal Amal Singh is not entitled to extention of limitation on the basis of these two deeds and that the suit of the Plaintiff-Respondent Kanwal Lal Amal Singh is barred by limitation.

The Learned Counsel for the Appellant has also challenged the findings of the Court below in respect of issues Nos. 9 and 16. According to him, Mussammat Pisto did not succeed to the property, in dispute, as heir, after the death of her father-in-law Paras Ram, her husband Prabbu Dayal having per-deceased his father. It is contended that there is no evidence on the record to show as to how the property, in dispute, devo ved upon her, but it is clearly mentioned in the conveyance deed. Exhibit P 9, executed by Mussammat Pisto along with others, by means of which the mortgagee rights were transferred. In this deed, Mussammat Pisto and others are clearly described as mortgagees It is a registered conveyance deed and there is no rebuttal of the same. Therefore, the contention of the Learned Counsel, in this respect has no substance.

Lastly, it is contended in respect of issues Nos 3 and 21 that in case suit of the Plaintiff is decreed and the appeal is dismissed, the Defendant Appellant is entitled to much more amount than that has been decreed in as much as according to the terms of the mortgage deed Exhibit P 11, the mortgagor was liable to pay interest to the mortgagee at the rate of Rs. 1,000/- per year and so calculating from the date of the mortgage upto the date of the filing of the suit, the total amount of interest conies to Rs. 83,000/. Both the Courts below have held, and rightly, that Section 30 of the Punjab Relief of Indebtedness Act, 1934, was applicable even to the secured debts as in the present case and the mortgagee was not entitled to more than twice the amount of the mortgage. This finding is based on correct interpretation of Section 30 of the Punjab Relief of Indebtedness Act 1934. The contention of the Learned Counsel for the Appellant that Section 30 of the said Act would have been applicable only if the suit had been filed by the mortgagee for the recovery of mortgage amount and interest and a decree bad been passed, has no substance as it is not based on correct interpretation of the provision and the same is repelled.

For the aforesaid reasons the appeal is accepted and the suit of the Plaintiff-Respondent Kanwar Lal, is dismissed as time-barred. There will be no order as to costs.