Mange Ram vs Smt. Parmeshri Devi

N.K. Kapoor, J.—This is defendant''s regular second appeal. Plaintiff filed a suit for declaration to the effect that property mortgaged by the defendant with possession vide mortgage deed dated 24.12.1973 has not been redeemed on payment of mortgage money within two years of the deed of mortgage and on the expiry of this period the plaintiff is entitled to have the mortgage fore-closed and so has become owner of the same. It is the case of the plaintiff that the defendant was owner of a double story shop and mortgaged the same with possession with the plaintiff for a sum of Rs. 15,000/- vide registered mortgage deed dated 24.12.1973. As per terms duly agreed between the parties and as well as stipulated in the mortgage deed the defendant could get the shop redeemed within two years from the date of mortgage failing which the plaintiff was entitled to have the same fore-closed. It is further case of the plaintiff that the shop was rented out to the defendant and so the rate of rent was to equalise the interest upon the mortgage. Since the defendant failed to have the shop redeemed within the stipulated period, the plaintiff sent a registered A.D. demand notice dated 24.2.1976 calling upon the defendant to make the payment of mortgage amount. Defendant, however, did not deposit the amount nor replied to the notice and so the plaintiff made a petition to the learned District Judge, Rohtak on 23.3.1976 under the Bengal Regulation Act, 1806. Defendant was duly served with the notice who came present on 24.4.1976 and filed written statement. Since the prescribed period of one year to redeem the shop has expired so the right to redeem has been extinguished and so the defendant has lost all his rights in the shop. This way the plaintiff has become the owner of the suit property.

Defendant in his written statement denied the demand notice issued by the plaintiff. Defendant further denied the receipt of any valid notice to pay or deposit the amount due as per mortgage deed. Otherwise also notice of fore-closure as per Sections 7 and 8 of Bengal Regulation No. XVII of 1806 has not been duly and validly observed and so the present proceedings cannot and do not have the effect of fore-closure of the mortgage finally. In addition to this the defendant averred that he is not the owner of the property in dispute and so the conditional mortgage effected and executed by the defendant is quite unauthorised and illegal. Plea was also taken to the effect that Shri Sardara Singh, father of the defendant is a necessary party to the suit and that the suit is bad on account of non-joinder of parties.

On the pleadings of the parties, the following issues were framed:-

1) Whether the rights of the defendant to redeem the suit property shall stand extinguished and plaintiff has become absolute owner in possession of the suit property as alleged? OPP.

2) Whether conditional mortgage effected and executed by the defendant was un-authorised and illegal as alleged. If so to what effect? OPP.

3) Relief.

The following additional issues were also fratned:-

1-A) Whether the suit is bad on account of non-joinder of necessary party? OPD.

1-B) Whether the defendant is estopped to deny his title in the suit property? OPP.

Under issue No. 1 the trial Court came to the conclusion that rights of the plaintiff have become absolute and that the plaintiff has become its owner. Under issue No. 2 the Court came to the conclusion that mortgage of the shop in dispute was not un-authorised and illegal as alleged and so decided this issue in favour of the plaintiff also. Issues 1-A and 1-B were not pressed at the time of arguments and so these were decided against the defendant. Resultantly, the suit of the plaintiff was decreed as prayed for.

Before the appellate Court the defendant-appellant once again raised all conceivable pleas with a view to seek the reversal of the judgment of the trial Court. According to the appellant, the trial Court erred in law in coming to the conclusion that the appellant was owner of the shop in dispute. According to the appellant, shop in dispute was purchased by Sardara Singh, his father sometime in the year 1949 and so Mange Ram-appellant had no right to mortgage the same. The lower appellate Court brushed aside the plea simply on the ground that the appellant is barred from raising such a plea in view of the mortgage deed dated 24.12.1973 executed by him in favour of the respondent-plaintiff. Examining the objection as to whether there has been compliance of Sections 7 and 8 of the Bengal Regulation Act, 1806 the lower appellate Court once again examined each one of the relevant documents and came to the conclusion that findings recorded by the trial Court are appropriate and as per record. Consequently, the appeal was dismissed.

Learned counsel for the appellant has almost raised pleas which did not find favour with the Courts below. Main emphasis is upon the notice issued in terms of Sections 7 and 8 of Bengal Regulation Act, 1806. According to the counsel, notice issued is defective inasmuch as the word deposit has not been mentioned in the notice. Any infirmity in the notice entitles the appellant to get rid of this harsh provision of fore-closure. Counsel sought support from the decision reported as Behari Lal v. Balmokand and Ors., AIR 1926 Lahore 112. The learned counsel further argued that even notice issued to the appellant infact does not bear the name of Parmeshri Devi and so the Courts below erred in law in taking as if the notice has been issued on her behalf.

Having heard the learned counsel for the appellant, I am of the view that the appeal is wholly devoid of any merit and so deserves to be dismissed. Broad facts have already been noticed in the earlier part of the judgment. Factum of notice having been issued by the plaintiff calling upon the defendant to pay the amount stands duly proved. Infact there is no denial. Only a technical plea has been raised that the same has been sent by Ude Singh and not by Parmeshri Devi. The notice received by the appellant has not been placed by him on record. This would have clearly either proved the version set up by the plaintiff or one now set up by the appellant. Merely for the reason that notice has been sent by Ude Singh as rightly been held not to be a valid ground to discard this document which admittedly the plaintiff received. It has come in the statement of Mehtab Singh PW-4, an Advocate who is son of Smt. Parmeshri Devi that original notice was prepared by him and was sent to Mange Ram. Thus, in view of the unrebutted statements of Mehtab Singh, Parmeshri Devi as well as of Majhi Ram Postman, leave no manner of doubt that notice issued on behalf of Parmeshri Devi was received by Mange Ram and so this objection of the appellant is devoid of any substance.

As regards the plea of the appellant that there has been non-compliance of Sections 7 and 8 of the Bengal Regulation Act, 1806 as the notice issued does not make mention of the word deposit is also without any sound foundation. No doubt in Behari Lal''s case (supra) the Court held that there can be no presumption in law that a foreclosure notice under the regulation is regular and that the party who relies upon foreclosure proceedings, having effected forfeiture of the estate of a mortgagor, has to prove affirmatively the due performance of every condition necessary to be established under the regulation. Yet in the context of evidence on record leaves no manner of doubt that all essential particulars as envisaged by Sections 7 and 8 of the Act have been duly complied with. This Court in Murari v. Pehlad 1982 PLR 44 had the occasion to examine almost identical plea/pleas raised i.e. non-mentioning in notice u/s 8 of all the alternatives provided for in Section 7. It was held that such a defect if any does not affect the validity of the notice. Similarly the Court held that when inadvertantly the word deposit has not been mentioned on account of mistake committed by the Court while issuing notice the same will not make the notice in any manner defective. In the present case, a notice was duly issued by the mortgagee that the property be redeemed and the money advanced be paid back vide notice dated 24.2.1976 but no reply was filed by the mortgagor-the appellant. It is thereafter that the mortgagee filed petition on 26.3.1976 for taking appropriate action Under Sections 7 and 8 of the Act. The District Judge issued notice u/s 8 of Regulation XVII of 1806 calling upon the appellant to pay or tender to the plaintiff/the petitioner the amount lent under the mortgage deed i.e. a sum of Rs. 15,000/- or balance of the same alongwith interest. This notice (annexure P-8) contained the following enclosures as well:-

1) For Regulation No. 17 of 1806.

2) Copy of Rehnama dated 24.12.1973, and

3) Copy of the petition.

Service was effected upon the appellant on 22.4.1976, annexure P-7. Shri Mange Ram appellant came present before the District Judge and filed an application stating therein that he is unable to make the payment of mortgage amount and so be granted one year to make the payment. This document is annexure P-S. Thus, on perusal of these document it is proved on record that there has been compliance of the provisions of Sections 7 and 8 of the Bengal Regulation Act and the Courts below rightly came too the conclusion that the appellant did not adhere to the stipulation in the mortgage deed leading to the decretal of the suit of the plaintiff. Thus, finding no merit in this appeal the same is dismissed.

No order as to costs.