Hukmi and Others vs Bharat Singh and Others

R.L. Anand, J.—This is defendants'' second appeal and has been directed against the judgment and decree dated 10.2.1981 passed by the Court of District Judge, Rohtak, who affirmed the judgment and decree dated 15.12.1976 passed by the Court of Senior Sub Judge, Sonepat, who decreed the suit of the plaintiffs respondents for possession by way of redemption of the suit property.

The pleadings of the parties can be described as follows:-

Bharat Singh and Karan Singh filed a suit for possession by way of redemption of the suit property on the allegations that Smt. Bhagwani, Smt. Sukhma and Smt. Surti, daughters of Duli Chand, i.e. defendants Nos. 8, 9 and 10 in the trial Court, were the owners of the land measuring 53 Kanals 2 Marias situated in village Kurar Ibrahimpur, land measuring 37 Kanals 8 Marias situated in village Abdulpur and the house situated in the abadi of village Kurar Ibrahimpur. These three ladies mortgaged the suit properties with possession with Hakmi and six others, who were defendants Nos. 1 to 6 in the trial Court, for a consideration of Rs. 35000/- by way of registered deed of mortgage dated 30.12.1966. Later on Smt.Bhagwani defendant No. 8 transferred her one-third share in the suit properties by way of registered gift deed dated 17.1.1968 to Fateh and three others, i.e., defendants Nos. 11 to 14 in the trial Court. These defendants Nos. 11 to 14 then executed a deed of gift of the property acquired by them from Smt. Bhagwani, to Bharat Singh and Karan Singh plaintiffs and Rim Parshad defendant No. 15, by means of a deed of gift dated 31.10.1968. The plaintiffs alleged that they called upon the mortgagees, i.e., defendants Nos. 1 to 7, to redeem the mortgage on receipt of mortgage money of Rs. 35,000/- and to convey back the mortgage properties to them, but they refused to do so, alleging that they had foreclosed the mortgage and the equity of redemption and for that reason these defendants had become the absolute owners of the property, Further it was pleaded by the mortgagees that original mortgagors Smt.Sukhma and Smt.Surti, i.e., defendants Nose 9 and 10 had further mortgaged their two-third share in the mortgaged property on 22nd January, 1968 for an additional sum of Rs. 16,000/- with the condition that this additional amount would be included in the previous amount of Rs. 35,000/- and that the property would not be open to redemption unless the whole amount of Rs. 51,000/- was paid. The Plaintiffs alleged that the alleged second mortgage propounded by defendants Nos. 9 and 10 was without consideration, yet they offered to the mortgagees a sum of Rs. 51,000/- for the redemption of the properties and they refused to do so. It was also alleged by the plaintiffs that the foreclosure proceedings relied upon by defendants Nos. 1 to 7 were bad in law because proper procedure preparatory to and in connection with the notice of foreclosure was not observed at all and the fore-closure proceedings do not and did not have the effect of making the conditional mortgage an absolute sale. With the above allegations the plaintiffs prayed for a decree of possession of the properties in suit by redemption on payment of Rs. 51,000/- and further it was prayed that defendants Nos. 1 to 7 be directed to deliver back the mortgage papers to the plaintiffs.

Notice of the suit was given to the defendants, Defendants Nose 1 to 7 contested the suit and took the stand that the plaintiffs had no right or interest in the property because the mortgage had been foreclosed and that there does not exist any relationship of mortgagor and mortgagee between the plaintiffs and the contesting defendants. It was, however, admitted by these defendants that Smt. Bhagwani defendant No. 8 executed a gift of her 1/3rd share in the disputed property in favour of defendants Nos. 11 to 14, However, the gift executed by defendants Nos. 11 to 14 in favour of the plaintiffs and defendant No. 15 was denied. It was averred that mortgage deed dated 30.12.1966 was a conditional mortgage and it was stipulated that if the mortgagors did not pay the mortgage amount within one year from the date, of the mortgage, the property would be deemed to have been sold for the same amount. Since the mortgagors did not pay the amount within the stipulated period and thereafter necessary proceedings under Bengal Regulation, No. XVII of 1806 were taken by the mortgagees for getting the right of redemption extinguished and for foreclosing the mortgage. It was also pleaded that the mortgage had since been foreclosed, therefore, the plaintiffs had no locus standi to call for the redemption of the properties.

It was also pleaded that the contesting defendants did not pay any money on account of any additional mortgage deed, as alleged by the plaintiffs, and that no further mortgage was ever created. The second mortgage was a fictitious document and did not have the effect of further mortgaging the 2/3rd share of defendants Nos. 9 and 10. It was also the stand of these defendants that the foreclosure proceedings were legal and according to law and that the plaintiffs were estopped by their own act and conduct from filing the present suit on account of their earlier filing a suit for pre-emption against the answering defendants admitting the mortgage having been foreclosed and that the conditional sale became absolute. It was also pleaded that the present suit in barred by the principles of res judicata on account of the earlier suit of redemption filed by the plaintiffs in which they claimed redemption of 1/3rd share of the property, and that the suit was also dismissed. Also it was pleaded by the contesting defendants that the present suit is barred under Order 2 Rule 2, C.P.C. and that the suit is not maintainable in the present form.

The plaintiffs filed a rejoinder to the written statement of the contesting defendants, in which they reiterated their allegations made in the plaint by denying these of the written statement and from the above pleadings of the parties, the trial Court framed the following issues :-

Whether there is a relationship of mortgagors and mortgagees between the plaintiffs and defendant No. 15 on the one hand and defendants Nos. 1 to 7 on the other hand? OPP.

Whether the plaintiffs and defendant No. 15 are entitled to get the possession of the suit properties by redemption of mortgage; if soon payment of what amount? OPP.

Whether defendants Nos. 9 and 10 created a second mortgage on their share of the suit properties an alleged in para 3 (ii) and para 4 of the plaint? If so, to what effect? OPP.

Whether the mortgage detailed in para 2 of the plaint has been validly foreclosed? OPD.(recast by order dated 12.6.74 of the Court).

Whether the plaintiffs are estopped by their acts and conduct from filing this suit, for the reasons given in the addl. pleas of the written statement of defendant Nos. i to 7 ? OPD.

Whether the suit is barred by res judicata? OPD.

Whether the suit in barred under Order 2 Rule 2, C.P.C.? OPD.

Whether the written statement is duly verified? If not, its effect? OPD.

Relief.

The parties led oral and documentary evidence in support of their case and k was concluded under Issue No. 1 that a relationship of mortgagor and mortgagee still subsists between the plaintiffs, defendant No. 15 on the one hand and defendants Nos. 1 to 7 on the other hand. Resultantly this issue was decided in favour of the plaintiffs. Issue No. 3 was decided in the manner that it was held that defendants Nos. 9 and 10 did not create any second mortgage. Issue No. 4 was decided against the defendants and in favour of the plaintiffs. Similarly, issues Nos. 5,6, 7 and 8 were decided against the defendants and in favour of the plaintiffs and defendant No. 15. Finally the suit was decreed by declaring that the plaintiffs are in a position to get the property redeemed on payment of Rs. 35,000/- because the alleged additional mortgage of Rs. 16,000/- has not been established,

Aggrieved by the judgment and decree of the trial Court dated 15.12.1976 the unsuccessful defendants Hukmi and others filed an appeal before the Court of District Judge, Rohtak, who vide the impugned judgment and decree dated 10.2.1981 affirmed the findings of the trial Court on all the issues and dismissed the appeal. Further aggrieved by the judgment and decree of the first appellate Court, the present second appeal.

I have heard Shri Hemant Sarin, Advocate, who appeared on behalf of the appellants, and Shri V.K. Jain, Sr. Advocate with Shri Raman Sharma, Advocate, on behalf of the respondents, and with their assistance have gone through the record of the Courts below.

While assailing the judgment and decree of the first appellate Court it was urged before me by the learned counsel appearing on behalf of the appellants that both the Courts below fell in error when they held that the earlier foreclosure proceedings were not according to law. Unfolding his argument under this head it was contended by Mr. Sarin that both the Courts were in error when they held that the application for the foreclosure proceedings was not presented before the proper person. According to the learned counsel, the Superintendent of the District Judge was the competent person to receive the petition and it was not incumbent that this petition ought to be presented before the District Judge. It was also highlighted that the notice, which was sent to the mortgagors by the District Judge contained full particulars of the properties as the application for the foreclosure proceedings was attached with the notice.

On the contrary, the judgment has been supported by the learned counsel appearing on behalf of the respondents and he has adopted the same reasons which have been incorporated in the judgment of the trial Court as well as in the judgment of the first appellate Court.

It may be mentioned here that the above contentions raised by the learned counsel for the appellants are the subject matter of issue No. 4 of the trial Court. The procedure of foreclosure as contained in Bengal Regulation No. XVII of 1806 has been attacked by the plaintiffs, therefore, the onus was upon them to establish that the foreclosure proceedings conducted in the office of the District Judge, Rohtak, were not according to law and those were illegal. In this regard it will be useful for me to make a reference to Section 8 of Bengal Regulation No. XVII of 1806, which provides that a holder of dead of mortgage of conditional sale desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any subsequent time shall after demanding payment from the mortgagor or his representative, can apply for that purpose by a written petition, to be presented by himself or by his authorised lawyer to the Judge of the Zila or City in which the mortgaged land is situated, and on receipt of such written application the Judge shall cause the mortgagor or his legal representative to be furnished with a copy of the application and shall at the same time notify to him by a ''Parwana'' under his seal and official signature that if the mortgagor fails to redeem the property in the manner provided in the Regulations within one year from the date of the notification, the mortgage will stand finally foreclosed and the conditional sale shall become conclusive. Section 7 of the said Regulations further provides the mode of redemption and it lays down the manner by which the redemption can be done, i.e., by payment of the mortgage amount or by tendering of the mortgage amount due to the holder of the mortgage deed or by deposit of the mortgage amount in the Civil Court of the City or the District.

Now it is to be seen with reference to the proceedings conducted by the office of the District Judge as to whether those proceedings were in conformity with the technical provisions of the Bengal Regulation No. XVII of 1806 or not and if those proceedings are in violation of these regulations, they are liable to be struck off. At this instance. I would like to make a reference to the citation reported as Shiv Lal v. Balle Ram 1969 CLJ 294, where it was held that the provisions of Bengal Regulation 1806 are ministerial and technical in nature and the mortgagor can take the benefit of technicalities. Exhibit D10 is the preparatory notice which was given by the mortgagees to the mortgagor. Exhibit D1 is the petition which. was presented by the mortgagees to the Superintendent of the District Judge on 15.1.1968 through their lawyer Shri Rattan Lal, Advocate, and in that regard the defendants examined the clerk Shri Parkash Chand Jain of Shri Rattan Lal, Advocate, who appeared as D.W .3, and he also stated on oath that the application Exhibit D1 was presented to the Superintendent of the District Judge, Rohtak, on 15.1.1968 and the endorsement of the Superintendent also corroborates to that extent. This document is at page Nos. 41 and 42 of the file of the trial Court and it clearly suggests that the petition was not presented before the District Judge, rather before the Superintendent who made the endorsement "Submitted for orders on 16.1.68." Thus the above endorsement would clearly suggest that this petition was not presented before the District Judge. Learned counsel appearing for the appellants has tried to convince me that the presentation of the petition to the Superintendent, would be considered as presentation before the District Judge because in official routine and in performance of his official duties the Superintendent had accepted and entertained the petition on behalf of the Presiding officer. This argument cannot be accepted in view of the clear provisions of Section 8 of the Bengal Regulation 1806 because it is mandatory that such petition was supposed to be presented to the Judge of the Zila or the City where the mortgage property was situated. The Legislature has intentionally omitted that such a petition could be filed in the Court of the District judge or in the office of the District Judge. Rather the District Judge has been nominated as a person who could alone entertain such petition. Any presentation to any other authority except the District Judge in person would be hit by the provisions of Section 8 of the said Regulations. Therefore, it was first infirmity in the proceedings of foreclosure.

Then it is to be seen whether the notice which was sent by the office of the District Judge upon the mortgagors was in conformity with Section 8 of the Bengal Regulations or not. Exhibit D11 is the notice. This document is at page No. 66 of the file. A glance of it would show that the list of the properties has not been attached by Shri Hari Krishan Mehta, the then District Judge, Rohtak Division. For the sake of convenience I would like to reproduce the notice as such in this judgment for proper appreciation of the argument raised by the learned counsel for the appellants:-

"In the Court of District Judge Rohtak Division.

Notice u/s VIII of Regulation XVII of 1806.

Hukmi minor son of Sohan, caste Jat, resident of Kurar Ibrahimpur, Teh. Sonepat. - Petitioner

Versus

Smt. Bhagwani D/o Duli Chand, caste xx resident of Kurar Ibrahimpur, Teh. Sonepat. - Defendants.

Petition for Foreclosure of Mortgage of Land.

To

Smt. Bhagwani, Smt. Sukhma, 3. Smt.Surti D/o Duli Chand, R/o Kurar Ibrahimpur through Kure s/o Sohan Jat r/o Kurar Ibrahimpur, Teh. Sonepat.

Whereas the above-mentioned petitioner is the receiver of holder of a deed of mortgage and conditional sale of land viz, Agr. land, situated in village Kurar Ibrahimpur executed on the 30/12/66 by you (or by the legal representative in favour of petitioner) and whereas the said Petitioner has applied to this court u/s VIII of Regulation XVII of 1806, for Foreclosure of the mortgage and rendering the sale conclusive; as copy of this petition is herewith furnished to you, and you are hereby informed that unless within one year from the date of receipt of this notification you pay or tender to said petitioner or to his representative the sum lent under the said sale deed viz. Rs. 35,000/- or the balance of the sum remaining undischarged together with such interest as may be due thereon, or unless you pay the said sum into this account within the above period, the mortgage will be foreclosed and the conditional sale will become conclusive.

Date of hearing in this Court is 16.2.68.

Given under my hand and the seal of the court this 17th day of Jan., 1968.

Sd/- "SEAL" H.K. Mehta District Judge, Rohtak Division.

Again the spirit of Section 8 of the Bengal Regulation 1806 has been violated in the foreclosure proceedings, making these proceedings bad in law. A critical reading of this notice would show that particulars of the mortgaged property were not mentioned and the mention was with respect to agricultural land situated in village Kurar Ibrahimpur only and not with regard to the land situated in village Abdulapur and the house. The object of these deterrent provisions is that the mortgagor must be made aware of the subject-matter of the foreclosure proceedings and if there is an error in the strict provisions which entails far-reaching consequences, the benefit should go to the mortgagor whose rights of equity of redemption were sought to be foreclosed.

Learned counsel for the appellants submitted that along with the notice a copy of the petition was enclosed.

Firstly, I do not factually endorse this argument as my reading to the notice (Ex.D11) shows that there is no mention about the attachment of the copy of the application and even if it is assumed for the sake of argument that there was a copy, even then this defect would not cure the notice (Ex.D11) and in this regard reliance can be placed on Jagni Mal v. Bishambar Dayal and Ors. (1965) 67 P.L.R. 121, and this authority was incidentally referred to in the Court below. To proceed further, this notice (Ex.D11) does not make a mention how the mortgagors were supposed to make the demand payment of Rs. 35,000/-, either by depositing in the Court or by tender of the said amount or its deposit should be made in the Diwani Adalat of the City or Zila, as the import of Section 11 is. The, notice relied upon by the learned counsel for the appellants was defective not being in conformity with the provisions of Sections 7 and 8 of the said regulations and therefore, the plaintiffs were well within their rights to discard the foreclosure proceedings and treat the mortgage as subsisting and had the locus standi to get it redeemed through the present suit out of which this appeal ha arisen.

Resultantly, I affirm the findings of the Courts below on issue No. 4.

Faced with the above situation the learned counsel for the appellants then took the stand that the present suit is barred by the principles of res judicata under Order 2 Rule 2, C.P.C., and the plaintiffs, are estopped by their own act and conduct in claiming the relief in this case. In nutshell the contesting defendants Nos. 1 to 7 wanted to make the legal provisions as shield to defeat the suit. The record of-the trial Court shows that earlier, the plaintiffs filed a suit for pre-emption against, the, contesting defendants admitting that mortgage had failed as a whole, which had allegedly become obsolete. The suit was instituted in the year 1970 and was decided on 28.1.1972 as per Exhibit D3, which is at page 50 of the file of the trial Court. Ex.D12 is the copy of the plaint of that suit, which is necessary to be referred in order to appreciate the argument raised by the learned counsel for the appellants. In para No. 3 it. is mentioned by the plaintiffs of this suit " Mortgagors redeemed the property by payment of the mortgage money within stipulated periods and the defendants secretly took proceedings for the foreclosure before the District Judge and they started claiming themselves owners of the land and when the plaintiffs, came to know of this fact, they deposited a sum of Rs. 11,666.67 on 4.8.1969 in the Court of the District Judge."

Firstly there cannot be estoppel against the law. At the most this was an admission made by the present plaintiffs in the garlier suit and as per the provisions of Section 31 of the Indian Evidence Act, these are not conclusive and could be shown as erroneous. The contesting defendants did not change their position about the alleged admission. At the most the admission made by the plaintiffs in the earlier suit was wrong in point of fact and was evidently made in ignorance of the legal rights and, therefore, not binding upon them. The plaintiffs also did not become the victims of approbate and reapprobate because the principles of estoppel do not apply in the present case.

Next in this appeal it is to be seen if it is barred by the principles of res judicata or under the provisions of Order 2 Rule 2, C.P.C. The onus in order to succeed on these pleas lay heavily on the contesting defendants. Exhibit D8 is the copy of the application dated 12.11.1968 which was filed before the District Judge, Rohtak by the plaintiffs seeking pre-emption to deposit one-third share of the mortgage money amounting to Rs. 11,666.67, i.e., Rs. 35,000/- after the foreclosure proceedings. Vide order dated 5.7.1969 (Exhibit D14) the District Judge ordered for the deposit of the amount at the risk and responsibility of the applicant. The amount was deposited. Thereafter the plaintiffs filed a suit for possession by way of redemption against the contesting defendants on the plea that one-third share of the mortgaged land had already been deposited and the property stood redeemed and, therefore, they became the owners and that the possession be delivered to them. Exhibit D6 is the copy of the plaint. This suit was dismissed on the ground that it was not proved that there was any order of redemption. In order to succeed on the plea of res judicata it has to be established by the defendants that in the earlier proceedings, the matter substantially in issue was the same as now contended in the present suit because the earlier suit was not a suit for redemption, but was based absolutely on the plea that the property had already been redeemed on deposit of Rs. 11,666.67. Even the plea under Order 2 Rule 2 has no legs to stand. The cause of action in the present suit could not be included in the earlier suit of pre-emption.

Further it was submitted that the plaintiffs themselves opted for the redemption of the properties on deposit of Rs. 51,000/-, but the Courts below gave the declaration by holding that the plaintiffs were entitled to redeem the property on payment of the principle amount of Rs. 35,000/-. This argument does not hold water because the additional mortgage, as alleged by the defendants, has not been established and in these circumstances the Courts below rightly held that the plaintiffs were entitled to redeem the property on the payment of the principle amount.

This leads me to the last argument of the learned counsel for the appellants, who submitted that the mortgagors could at the most get properties redeemed to the extent of one-third share. This argument is again devoid of any merit in view of the provisions of Sections 90 and 91 of the Transfer of Property Act, whereby one of the mortgagors can get the entire property redeemed even of his co-mortgagors. Reliance can be placed in this regard on Valliamma Champaka v. Sivathanu Pillai and Ors. AIR 1964 Mad 269 , and Mange and Others Vs. Des Raj and Others, .

Learned counsel for the respondents has relied upon Thota China Subba Rao and Ors. v. Mattapalli Raju and Ors. AIR 1950 FC 1 (Full Bench), where it was held that right of redemption can be extinguished only by a decree, which must be in the prescribed proforma and unless the right of redemption is so extinguished, the second suit is not barred. In the present case so long the mortgage was subsisting, the mortgagors had the right to redeem the property. The learned counsel also relied upon Kali Nath Saha and Another Vs. Manindra Nath Das and Others, , to contend that the present suit is not barred by the principles of res judicata or under Order 2 Rule 2, in C.P.C, because in the earlier suit filed by the mortgagors the question of redemption was not in contest. I fully endorse the argument raised by the learned counsel for the respondents because no question of plaintiffs'' right of redemption was ever raised in the earlier suit, which was dismissed. Therefore, the present suit is not barred u/s 11 C.P.C.

No other point was urged before me.

Resultantly, I do not see any merit in this appeal, which is hereby dismissed, leaving the parties to bear their own costs.