Kailash Chatidra Deb and another vs Jogendra Chandra Datta and others

Brij Narain, J.C.

This second appeal arises out of title suit No. 29 of 1358 T. E. which was brought by the plaintiffs-appellants against the defendants-respondents for redemption of the mortgage deed dated 10th Chaitra 1339 T. E. and for recovery of khas possession over 13 kanis 15 gandas of land specified in the schedule annexed to the plaint on the allegation that they had mortgaged the lands to Gaya Prasad Chakravorty Choudhury the predecessor in interest of defendants 1 to 6 for Rs. 44/- by means of the registered mortgage bond in suit but as they were unable to repay the mortgage loan, they gave the possession to Gaya Prasad Chakravorty Choudhury in 1343 T. E. in lieu of interest and Gaya Prasad Chakravorty Choudhury was to return the land to the plaintiff whenever the principal mortgage money of Rs. 44/- would be paid back to him.

Gaya Prasad Chakravorty Choudhury is alleged to have created some false documents in favour of the defendants 7 to 13 and so the latter were also impleaded as defendants in this suit. According to the plaintiffs the mortgagees'' dues had been completely satisfied by the usufruct and so the plaintiffs were entitled to redemption and to recover possession without paying any sum to the mortgagees in this suit as the latter had been in possession, for about twenty years.

The defendants denied all knowledge about the mortgage deed dated 10-12-1339 T. E. and it was contended that the defendants 1 to 6 possessed the suit land on taluki right and not as usufructuary mortgagees and the pro forma defendant had been in possession as tenants of Gaya Prasad Chakravorty Choudhury after taking settlement from him. The learned munsiff, Khowai after recording evidence of both the parties decreed the suit.

The respondents 1 to 5 then brought civil appeal No. 125 of 1902 in the Court of the learned District Judge, Tripura who allowed the appeal on 27-1-1954 on the ground that the simple mortgage dated 10-12-1889 T. E. could not be converted into a usufructuary mortgage under S. 92 proviso 4 of the Evidence Act by means of a subsequent oral agreement and the suit was not maintainable in its present form. The plaintiffs have now come to this Court in second appeal.

Two preliminary points were urged on behalf of the respondents namely:

(1) The appeal could not be heard as the appellants had failed to file a certified copy of the judgment of the trial Court. The learned Advocate for the appellants has not filed a certified copy of the judgment of the trial Court even though this appeal had been instituted on 29-5-1954. On 20-6-1955 he was expressly ordered to file a certified copy of the judgment along with its English translation on or before 28-6-1955 and information of this order was duly given to the learned Advocate OR 24-6-1955 but even then he did not comply. Even on the date of hearing no certified copy of the Judgment was filed and so the hearing of the appeal was hampered to a very great extent.

It has been held in - Bhairon Ghulam and Others Vs. Ram Autar Singh, , that the memo of second appeal must be accompanied by a copy of judgment of the first Court. The Calcutta High Court has by notification No. 1750/G dated 15-2-1938 laid down that

the rules of O. 41 shall apply, so far as may be to appeals from appellate decrees:

Provided that every memorandum or appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and also (unless the Court sees fit to dispense with any or all of them) by copies of the judgment on which the said decree is founded and of the judgment and decree of the Court of First Instance.

A similar rule prevails in Assam also vide Sarker''s Code of Civil Procedure, Third edition, page 914.

The rules of the Judicial Commissioner''s Court for Tripura also provide to the same effect vide Rule 7 (para 2) which runs as follows:

In case of an appeal from appellate decree or order, copies of the judgment and decree or order of the Court of First Instance shall be filed along with the memorandum of appeal. If such copies are not so filed, the appeal shall not be placed or the list for hearing under O. 41, R. 11 of the Civil P. C, until they are filed.

The appellants in this case did not file any copy of the judgment in spite of being given a number opportunities and so this contention of the respondents prevails.

The next preliminary point urged on behalf of the respondents is that this appeal is time barred. It appears from the record that suit No. 29 of 1358 T. E. was decided by the trial Court on 17-9-1952 and the Civil appeal No. 125 of 1952 was allowed by the learned District Judge on 27-1-1954. The present second appeal was instituted on 29-5-1954 and as it was filed beyond 90 days of the passing of the judgment it is urged that this appeal is time barred.

Reliance has been placed on - ''Maung Po Kyaw v. Ma Lay'', AIR 1929 Rang 116 (B); ''Sin Dayal v. Anopi'', AIR 1923 Nag 349 (C); ''Tej Kisen v. Delhi Cloth and General Mills Co., Ltd.'', AIR 1950 EP 195 (D); Keshar Sugar Works Vs. R.C. Sharma and Others, ; ''Dagduba v. Abdul Gafur Khan'', AIR 1954 Hyd 104 (F); AIR 1945 233 (Lahore) ; ''Governor General in Council v. Jesraj Tilakchand'', AIR 1950 Ass 83 (H); Krishnamma Boyee Vs. Gopal Row and Others, , in which it has been clearly laid down that O. 20. R. 7 read with Art. 152 Sch. 1 of Limitation Act makes the "date of the decree" for calculating time for appeal to be the date on which the judgment was pronounced and under S. 12(2) of the Limitation Act the time taken from the date of the pronouncement of the judgment to the date of the signing of the decree cannot be properly excluded as time requisite for obtaining" a copy of the decree.

On behalf of the appellants it has been urged that the appeal is filed against the decree and unless the decree is prepared an appeal cannot be filed and so time should run from the date of signing of the decree. Reliance has been placed on - Province of Bengal Vs. Amulya Dhon Addy and Others, ; Manoo Rai and Others Vs. Keshwar Rai and Others, ; Bhausaheb Jamburao Vs. Sonabai, , which lay down. that reasonable time in applying for copies (sic) be included in period requisite under S. 12 b (sic)each case is to be decided on its own facts. It has also been laid down in the Calcutta ruling referred to above that under S. 12, the period between the date of the judgment and the date when the schedule of costs (decree) is signed, and the period of time requisite for obtaining copies of the judgment and decree can be excluded.

There is no doubt that on strict interpretation of S. 12 of the Limitation Act the time should run from the date of the judgment and the time taken for obtaining a copy of the decree should be excluded but as the ruling reported in - ''Beni Madhab v. Matangini Dasi, 13 Cal 104 (FB) (M). and ''Province of Bengal v. Amulyadban-Addy'', (J) referred to above have been consistently followed in this State so far, I think these rulings should be deemed to be good law for this State and so in my opinion this preliminary objection of the respondents cannot be deemed to be of any force.

Coming now to the merits it has been argued by the learned Advocate for the appellants that his clients could redeem the mortgage deed dated 10.12.1339 T. E. within 60 years under Art. 148 Sch. 1 of the Limitation Act. Article 148 runs as follows:

Against a mortgagee to redeem or to recover possession of immovable property mortgaged.

Sixty years.

When the right to redeem or to recover possession accrues............

But the appellants cannot take advantage of this Article unless they first establish that they are entitled to recover possession over the mortgaged property through redemption. In other words, they should proved that a usufructuary mortgage subsisted in favour of the mortgagee. In the present case, it is admitted that the mortgage deed dated 10-12-1339 T. E. was a simple mortgage and as such a suit for possession over the mortgaged property could not properly be instituted within 60 years of the execution of the simple mortgage under Art. 143 of the Limitation Act.

The contention of the appellants is that even though the mortgage deed dated 10-12-1339 T. E. was in it''s inception a simple mortgage, by altering the mode of payment of interest in 1343 T. E. orally, it was converted into a usufructuary mortgage and so 60 years rule of limitation for redemption would apply in the present case. Reliance has been placed in this connection on - ''Kunjuvaried v. Nayithiyaramma'', AIR 1955 TC 69 (PB) (N), but in this case the original agreement was an oral agreement. Section 92 proviso 4, Evidence Act which is to the following effect:

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding ho, or subtracting from, its terms.

Provided the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition, of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

The mortgage deed dated 10-12-1339 T.E. is a written and registered deed and so under the proviso mentioned above no oral agreement can be allowed to. be proved which might seek to modify even mode of payment. The mortgage deed in question gives a clear mode of payment and so the ruling reported in - AIR 1948 129 (Oudh) . where the document evidencing the mortgage was silent as to the manner in which the payment was to be made cannot be applicable to this case.

Similarly the case of - AIR 1932 42 (Nagpur) , in which oral evidence was allowed to be adduced to prove that the partnership had in spite of the terms in the contract that it would continue for 5 years, been dissolved in June 1922 and the plaintiff. had been paid his share of the assets cannot be of any help to the present appellants. I have already shown above that the language of the S. 92 proviso 4 clearly helps the present respondents. In Jadunandan Das and Another Vs. Mt. Maho and Others, , it was clearly laid down that where a lease from month to month is registered, a subsequent oral agreement which modifies the contract of the lease was not admissible in evidence.

Similarly in - Khub Lal Chaudhuri and Others Vs. Bechan Mandal and Others, , it was held that though it was always open to a mortgagor to prove that on a certain day he paid the sum due under the mortgage, still when in the registered mortgage deed there is an express term that payment should be made in a certain way and unless endorsed on the deed it should not be regarded as payment at all, the mortgagor will not be allowed to prove, discharge of the mortgage by subsequent oral agreement which goes to vary the terms of the mortgage, vide also - Raja Sri Shiva Prasad Singh Vs. Lalit Kishore Mitra and Others, , in which it was held that no oral agreement is admissible to prove variation of the terms of a registered lease including a term as to the payment of rent, notwithstanding the fact that the lessee has paid and the lessor has accepted, rent at a reduced rate for many years.

I am therefore, of opinion that the learned District Judge was right in holding that no usufructuary mortgage could possibly be created in favour of the appellants by any subsequent oral agreement which sought to vary the terms of the registered simple mortgage deed dated 10.12.1339 T. E. and so the present suit for possession was misconceived.

The appellants'' theory that the mortgaged land was given in possession of the mortgagee in 1343 T. E does not appear to be correct on facts also, for it is clearly established that the appellants are still in possession of 2 kanis 5 gandas of land and they have been paying rent for this land. It appears that as the appellants could not pay rent they surrendered the remaining portion of jote No. 18 to the original landlord who was also a simple mortgagee under the deed of 1339 T. E. and then the appellants kept quiet for a period of 20 years.

As the land had been returned to the Zamindar, the latter took no action to sue for sale within the next 12 years. As the Zamindar settled the land in question with the other defendants and the latter had absolutely no knowledge about the simple mortgage dated 10.12.1339 T. E. they could not properly be ejected in any suit for redemption when no usufructuary mortgage regarding the land in question subsisted.

Under these circumstances the learned District Judge was perfectly justified in dismissing the appellants'' suit and I hold that there is no force in this present second appeal which is hereby dismissed with costs to the respondent 4. who has been represented in this Court by an Advocate. The remaining respondents will neither pay nor receive any costs.