Gobind Saran Singh vs Ram Autar Singh and Others

Manohar Lall, J.—This is an appeal by the plaintiffs in a suit for declaration title and recovery of possession against the defendants who resist his claim by setting up their own title in the following circumstances: On October 4, 1896, one Lalit Narain Singh mortgaged the property in dispute to Babu Rameshwar Narain mahtha for Rs. 8,600 (by way of simple mortgage) who assigned his rights on June 7, 1900, to Musammat Narain Dei. On May 11, 1903, the mortgagor executed a second mortgage in favour of Langat Singh of the, same properties covered by the earlier mortgage of 1896 (including some other properties), On September 19, 1903, Musammat Narain Dei instituted a mortgage suit against mortgagor to enforce her mortgage rights but she omitted to implead the second mortgagee. This suit was decreed on January 28, 1904, and the decree was made final on December 3, 1904. It will be noticed that this decree was passed when the Act of 1882 containing Section 89, was in force. This decree was executed and on September 22, 1910, Narain Dei purchased the property in dispute and obtained delivery of possession against the mortgagor on November 25, 1912. Thereafter on April 18, 1913, she sold the properties in dispute to the Plaintiff for a sum of Rs. 7,000. The plaintiff as the purchaser from Narain Dei applied for mutation of names in the Land Registration Department in place of the heirs of Lalit Narain Singh and succeeded. The name of the plaintiff so mutated stood on the records of the Collector till February 29, 1928. On June 27, 1916, the plaintiff sold a portion of the property which he had purchased for a sum of Rs. 6,000 to one Sheo Prasad who got his name recorded in place of the plaintiff and who, it appears, has been in possession ever since. On November 13, 1923, the plaintiff filed an application before the Collector for a separate account so that the payment of revenue on his behalf may be safeguarded. This was allowed by the Collector. The title of the plaintiff to the properties in suit is, therefore, based upon his title derived from Narain Dei in 1913 after the title had vested in her on November 25, 1912, by virtue of the execution sale of her decree of December 3, 1904,

It is now necessary to detail the transactions which constitute the title of the defendants. On March 30, 1910, the second mortgagee brought an action to enforce his mortgage of May 11, 1903, but omitted to implead either Rameshwar Narain Mahtha or his assignee Narain Dei. He impleaded the mortgagor and he also impleaded the plaintiff but in his capacity as a zarpesh-gidar of one of the properties covered by that mortgage, but as the present title of the plaintiff was derived in 1913, it is unnecessary to consider the effect of his being impleaded as a party in this mortgage action. The second mortgagee having obtained a decree purchased the mortgaged properties (including the properties in dispute) on August 11, 1913, and obtained formal delivery of possession in the month of September following. It will be noticed that the order for sale on the second mortgage was made after the provisions of Section 89, Transfer of Property Act, had been deleted. The defendants who resisted the action, claimed that they were in possession from the date of their purchase in September 1913 and their names were mutated in the books of the Collector on February 29, 1928.

To determine the rival, claims of either party, long and elaborate arguments were advanced in this, Court as to the effect of the non-inclusion of the second mortgagee in a suit brought by an earlier mortgagee when the provisions of Section 89, Transfer of Property Act, were in force and as to whether the title which was obtained by defendant No. 1 in the later mortgage action prevails over the title acquired by Narain Dei (and later on by the plaintiff from her). A large number of cases of the Indian High Courts were also cited at the bar but in my opinion, the matter is no longer open to controversy in view of the authoritative decisions of the Privy Council in three cases which are discussed below: The leading case upon this point is the casein Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.). The identical point now before me was considered by Viscount Haldane in delivering the judgment of the Privy Council and his Lordship held that the concluding words of Section 89, Transfer of Property Act of 1882, which provide that

the defendant''s right to redeem and the security shall both be extinguished.

mean that

on the making of the order absolute, the security as well as the defendant''s right to redeem are both extinguished, and that for, the right of the mortgagee under his security there is substituted the right to a sale conferred by the decree.

His Lordship proceeds further and makes this very important observation:

The second mortgagee, not having been made a party, was not affected by the decree made in the suit of 1892, and in addition, the decree itself became inoperative under the Limitation Act as the result of nothing having been done under it. It follows that the title of the second mortgagee, Shadi Ram, respondent No. 1, has remained in existence as the only encumbrance prior to the title of the appellant as owner of the equity of redemption.

This case was again considered in Matru Mal v. Durga Kunwar 42 A. 364 : 55 Ind. Cas. 969 : AIR 1920 P.C. 79 : 47 I.A. 71 : (1920) M.W.N. 338 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529 : 2 U.P.L.R.(P.C.) 75 : 22 Bom. L.R. 553 : 32 C.L.J. 121 : 27 M.L.T. 319 : 25 C.W.N. 397 by Sir John Edge when delivering the judgment of the Privy Council and his Lordship observed:

That case, Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) decided that an order made u/s 89, Transfer of Property Act, 1882 (Act IV of 1882), for the sale of mortgaged property, has the effect of substituting the right of sale thereby conferred upon the mortgagee for his rights under the mortgage and the later rights are extinguished.

The same question was again considered in Sukhi v. Ghulam Safdar Khan 43 A. 469 : 65 Ind. Cas. 151 : AIR 1922 P.C. 11 : 48 I.A. 465 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590(P.C.) where Lord Dunedin in delivering the judgment of the Board has pointed out that:

The decision in Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) is based on two points which are: it must be admitted, alternative and not cumulative: (1) that the decree was useless in respect of limitation, and (2) that the second mortgagee had not been impleaded. Although the first point has no application to this case, the second has. But the second proposition which was absolutely necessary for the judgment was that the mortgage was gone forever so soon as the decree of sale was obtained; and that was based on the express words of Section 89, Transfer of Property Act, etc, etc

In my opinion, after these three authoritative decisions of their Lordships of the Privy Council, it is not permissible for any, Indian Court to say that the Judicial Committee did not mean what they have so expressly and clearly laid down in those cases or that the observations in Het Ram''s case 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) must be treated as obiter. Our attention has been invited to two cases of this High Court where a contrary view is apparently taken. In Ram Narain Lal v. Sahadeo Singh 1 Pat. 332 : 67 Ind. Cas. 221 : AIR 1922 Pat. 181 : 3 P.L.T. 261 : (1922) Pat. 174 Das, J, in delivering the judgment states thus at p. 335 Page of 1 Pat.�[Ed.]:

If the decision of the Judicial Committee in Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) be the last word on the subject, then there can be very little doubt that the respondents will be entitled to succeed.

But he proceeded to observe that the consideration by the Judicial Committee in Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) in Sukhi v. Ghulam Safdar Khan 43 A. 469 : 65 Ind. Cas. 151 : AIR 1922 P.C. 11 : 48 I.A. 465 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590(P.C.) has resulted in overruling this decision. With great respect I do not agree with this. In my opinion, the decision in Het Ram v. Shadi Ram 40 A. 407 : 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) as expounded in the two later decisions of the Privy Council mentioned above remains unshaken. Moreover, it appears that these observations were not at all necessary for the decision of the case before Das, J. The suit of Ramlagan was brought in 1912 and the order of sale was, therefore, necessarily passed when the provisions of Section 89, Transfer of Property Act, were repealed, although the mortgage sought to be enforced was of 1905 when those provisions were still in force. In Jageswar Mandal and Another Vs. Sridhar Lal Aditya Deb and Others, ; Kulwant Sahay, J. in delivering the judgment makes this observation with regard to Het Ram''s case 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.)and Matru Mal''s case 42 A. 364 : 55 Ind. Cas. 969 : AIR 1920 P.C. 79 : 47 I.A. 71 : (1920) M.W.N. 338 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529 : 2 U.P.L.R.(P.C.) 75 : 22 Bom. L.R. 553 : 32 C.L.J. 121 : 27 M.L.T. 319 : 25 C.W.N. 397:

These two decisions of the Privy Council proceeded on a construction of Section 89, Transfer of Property Act, under which on the making of the order absolute for sale the security as well as the defendant''s right to redemption were held to be extinguished and for the right of the mortgagee under his security there is substituted the right to a sale conferred by the decree. In none of these two decisions the several rulings of the High Courts of India on the interpretation of Section 89, Transfer of Property Act, were brought to the notice of their Lordships. It was held u/s 89, Transfer of Property Act, that the right to redeem was not extinguished on the making of the order absolute for sale u/s 89 of the Act but upon the actual sale and confirmation thereof by Court. In Sukhi v. Ghulam Safdar Khan 43 A. 469 : 65 Ind. Cas. 151 : AIR 1922 P.C. 11 : 48 I.A. 465 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 Lord Dunedin referred to Vanamikalinga Mudali v. Chidambara Chetty 29 M. 37 and observed that this case does not seem to have been brought to the notice of the Board in Het Ram''s case 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.). In Ram Narain Lal v. Sahadeo Singh 1 Pat. 332 : 67 Ind. Cas. 221 : AIR 1922 Pat. 181 : 3 P.L.T. 261 : (1922) Pat. 174 Das. J. doubts that the decision of the Judicial Committee in Het Ram v. Shadi Ram 45 Ind. Cas. 798 : AIR 1918 P.C. 34 : 45 I.A. 130 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73(P.C.) is the last word on the subject.

With the utmost respect to this learned Judge, I think, that it is not open to any High Court in India to say that the decision of their Lordships of the Privy Council would have been different if some other rulings of the Indian High Courts had been brought to their notice which laid down apparently a different interpretation of Section 89. The learned Judge himself found at p. 225 Page of 8 Pat.�[Ed.], that in the case before him:

it has not been shown when the final order for sale was passed in Guhi Ram''s case. The sale actually took place in February 1912, long after the Code of 1908 had come into force, and it can reasonably be contended that the present case is governed by the provisions of the Code of 1908 and not by Section 89, Transfer of Property Act.

In view of this finding of fact as to the date when the order for sale was passed the remarks of Kulwant Sahay, J. must be treated as obiter and not at all necessary for the decisions of the case before him. It follows from the review of the authorities discussed above that Narain Dei by her purchase on Septembar 22, 1910, in execution of the order for sale of December 1904, obtained no title whatsoever which could prevail against the second mortgagee or purchaser in execution of the decree obtained on the second mortgage. The plaintiff also as purchaser from Narain Dei acquired no valid title at any time against the defendant first party. Turning to the question of possession, the learned Subordinate Judge has found that:

Although the evidence as to possession on the side of the defendants first party is not at all satisfactory, the plaintiff cannot take advantage of that. He has to succeed on the strength of his own evidence, and for the reasons given above, I am not satisfied that Narain Dei and the plaintiff were really in possession over the properties in suit for a period of 12 years after delivery of possession, and before the alleged dispossession.... I am also not satisfied that the plaintiff was ever really in possession over the disputed properties within 12 years of the suit.

Now the learned Subordinate Judge has not taken into consideration the undisputed circumstances of very convincing character which in my opinion would turn the scale in favour of the plaintiff. After the sale to the plaintiff on April 18, 1913, he applied for mutation of name in place of the heirs of the mortgagor with two months and this was allowed and his name continued as such for a large number of years. In June 1916 the plaintiff as the purchaser from Narain Dei actually sold a valuable property (a portion of Scheduled 1 property) for Rs. 5,990 to one Sheo Prasad and this purchaser also obtained possession and got his name recorded in the books of the Collector in place of the plaintiff. Again in November 1923 the plaintiff filed a petition for separate accounts to be opened in the Collector''s records, so that he may be able to pay the Government Revenue in his own name and thus avoid the danger of the property being put to sale for non-payment of Government demands by the co-sharers. Add to this that the plaintiff has been paying all along Government revenue and cesses for the properties in suit ever since his purchase in 1913. The defendants on the other hand have never even attempted to get their names recorded in the Collector''s records from August 1913 to 1927, that is to say, a period of 14 years. Exhibit 16, the order-sheet in the Land Registration case, discloses a curious state of affairs. The defendants applied on September 20, 1927, to get their names registered in the Land Registration Department. On January 31, 1928, the Collector passed this order that no notice had yet been served on the recorded proprietor Govind Saran Singh and on February 14, 1928, he took ex parte evidence and ordered the case to be put up on February 28, 1928, after the expiry of time, on which date he gave reasons in his order that the applicant was asking for registration on the basis of the Civil Court sale certificate and dakhal-dehani, dated September 21, 1913, but he found that one Musammat Janki Kuer was not a judgment-debtor at all and that the shares of several villages for which land registration was attempted were not even sold. The Court thereupon suggested to the applicant to get a ladavi deed executed and filed by Musammat Janki Kuer and also to reconcile the discrepancies. On the same date the Court ordered registration of the name of the applicant in place of Govind Saran Singh on the ground that he was a party in the civil suit in respect of the villages given in the sale certificate and in the application.

When the plaintiff came to know of this ex parte order that it was based upon an erroneous view of the facts, and of the sale and delivery of possession of 1913, he filed an application for review of this order on December 4, 1929. It is significant to note that the objector was absent although he was called upon several times, but the Court rightly thought that he would not go into the nice and intricate questions of right and title in the Land Registration Department and disallowed the application. There is force in the contention of Mr. Mullick that the ex parte order was obtained from the Land Registration Court on misrepresentation of facts because it was admitted before us that the plaintiff as purchaser from Narain Dei was no party to the suit or execution, proceedings which resulted in a sale in favour of the defendant on August 11, 1913. Now, these admitted facts would be quite enough prima facia to establish the possession of the plaintiff. The plaintiff has also adduced oral evidence by examining two patwar is, three tenants as well as himself. The learned Subordinate has criticized this evidence on the ground that there is material variance between the pleadings and proof. In my view this criticism is not sound. The plaintiff is not required in his plaint to state the evidence upon which he relies as to his possession in the relevant period. Indeed it seems that the learned Subordinate Judge looked at the oral evidence of the plaintiff from a wrong stand-point as if the plaintiff was establishing adverse possession. It is true that this claim was put forward in argument, but this was never the case in the plaint nor has Mr. Mullick advanced any such claim before this Court. The plaintiff also produced some documentary evidence at the trial which tends to support the oral evidence and the circumstances mentioned above. The oral evidence of the defendant was rightly rejected by the Subordinate Judge as unsatisfactory and no argument was advanced on behalf of the respondents to challenge this finding of the Subordinate Judge. Upon a careful consideration of the facts and circumstances which have been fully established in this case, I am of opinion that the plaintiff has established that Musammat Narain Dei and thereafter the plaintiff were in undoubted possession of the disputed lands from November 25, 1912, right up to March 1928, and I would reverse the finding of the learned Subordinate Judge on this point.

The present suit, however, is a suit in ejectment and the plaintiff can only succeed upon the basis of his subsisting title within 12 years of the date of the institution of the present suit, that is to say, within 12 years of September 1930. I have already held that the plaintiff acquired no title to the lands in suit by reason of his purchase in 1913. It necessarily follows that he had no subsisting title on the date when he raised the present action. The result is that the appeal fails and must be dismissed. In view of the fact that the plaintiff was all along in possession (till he was dispossessed) under an erroneous view of law, there will be no order for costs to the successful respondents in this Court.

Courtney-Terrell, C.J.

I agree.