Moti and Others vs Balla and Others

R.L. Anand, J.—By this judgment I dispose of one of the oldest appeals of this court.

This is defendants'' appeal and has been directed against the judgment and decree dated 30.8.1966 passed by the Court of District Judge, Sangrur, Camp at Narnaul, vide which the learned District Judge modified the judgment and decree dated 20.5.1964 passed by the Court of Senior Sub Judge, Narnaul and granted a preliminary decree for possession by way of redemption of the property in dispute, including the improvements made by the mortgagors on payment of Rs. 7209.50 and 2138.22, total being Rs. 9347.72 paise and the plaintiffs were given time to deposit the amount by 28.2.1967.

The brief facts of the case are that Pokhar son of Sodha and Chuna son of Pokhar Saini, residents of Nangal Chaudhary, ancestors of the plaintiffs Bala and others, mortgaged with possession the property in dispute in favour of Girdhari Lal and Ganga Sahai, Aggarwals of village Nangal Chaudhary, the predecessors of the present defendants, on Chet Sudi 8,1953 Bk. The property in dispute was mortgaged for a sum of Rs. 1425/-. The terms of the mortgage were that the mortgagees would remain in possession of the property in dispute and the rent of the property would be considered as equal to the interest. The mortgage could be redeemed on payment of Rs. 1425/-. The plaintiffs are the successors-in-interest of the original mortgagors while the defendants are succesors-in-interest of the original mortgagees. Bisbambhar brother of Chuna and father of Balla plaintiff filed a suit on 30 Jeth 1961 Bk. for the redemption of 1/2 share of the mortgaged property against Bakhtawar, Bhuru and Har Sahai, in which the then defendants admitted the mortgage but the suit was dismissed on the ground that it was for partial redemption (decided on 29 Poh 1961 Bk) . The present suit has been filed within limitation from the date of the acknowledgement made by the mortgagees in the earlier suit. Bakhtawar and Har Sahai, the ancestors of defendant No. 10, obtained a money decree against Bishambhar brother of Chuna and Bihari son of Chuna from the Civil Court and in execution of the same decree the mortgagors prayed for a de novo mortgage and on 2nd Maghar 1966 Bk. the court mortgaged the property in dispute in the sum of Rs. 1935/9 Annas + Rs. 202/l0 Annas and 6 Pies on account of the decretal amount and so the total amount of the mortgage became Rs. 2138/3 Annas/6 Pies and the plaintiffs are entitled to redeem the property in dispute on payment of Rs. 2138/3 Annas/6 Pies. It is contended that Bishambhar brother of Chuna died issueless and Chuna son of Balla also died and the plaintiffs, being the heirs of the original mortgagors, are entitled to redeem the property in dispute.

The suit was contested by defendants Nos. 1, 6 and 8, namely, Moti, Birda and Chiranji, and these defendants admitted that a one storeyed house facing east along with the rooms inside it and the courtyard on the outside of the house were owned by the defendants although the aforesaid property was mortgaged in 1953 Bk. with Girdhari Lal and Ganga Sahai ancestors of the defendants. According to these defendants, there was litigation between the predecessors-in-interest of the parties in the year 1970 Bk. wherein the dispute was settled through arbitration in terms of which the predecessors-in-interest of the defendants paid Rs. 1300/- to the predecessors-in-interest of the plaintiffs and the predecessors-in-interest of the defendants became full owner of the mortgaged property. It is contended that ever since the above settlement, the predecessors in-interest of the defendants and the defendants have been in possession of the property mortgaged openly as owners. The house in question was in dilapidated condition and the defendants made huge repairs and constructed the upper storey and the boundary walls of the outer courtyard and spent a sum of Rs. 10,000/-. The defendants denied the acknowledgement of the mortgage by Har Sahai, Bakhtawar and Bhuru and pleaded that the suit of the plaintiffs was barred by time and there was no de novo mortgage.

It may be mentioned here that earlier the suit was filed against defendants Nos. 1 to 7 but these defendants took the objection that the suit was defective as Chiranji, Devki and Mussadi Lal (defendants Nos. 8 to 10) were necessary parties and they were not joined as such. Later on they were allowed to become as parties as defendants Nos. 8 to 10.

The above pleadings of the parties gave rise to the following issues:-

Whether the property mentioned in para No. 1 of the plaint was mortgaged with possession by the ancestors of the plaintiffs in favour of the ancestors of the defendants on Chet Sudi 8, 1953 Bk. in lieu of Rs. 1,425/-? O.P. (Objected to)

Whether the upper storey of the disputed property was built by the defendants at their expense after the mortgage in favour of their ancestors and, if so, its'' effect? O.D.

Whether the defendants have become the owners of the suit property by paying Rs. 1,300/- to the ancestors of the plaintiffs under the award of arbitrators in the year 1970 Bk. O.D.

Whether the suit is in time? O.P.D.

Whether there was novation of mortgage under the orders of Civil Court dated 2.8.1966 Bk. for Rs. 1935/9/- plus Rs. 202/10/ ? O.P.D.

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the trial Court passed a preliminary decree for possession by way of redemption of the property in dispute (including improvements) on payment of Rs. 2,138/3/6 (Rs. 2,138.22 N.P.) against the defendants.

The defendants filed first appeal in the Court of District Judge, Sangrur (Camp Narnaul) who partly allowed the appeal and modified the judgment and decree of the trial Court and passed the decree for possession by way of redemption in terms stated earlier in this Judgment.

Aggrieved by the judgment and decree dated 30.8.1966 passed by the District Judge, the defendants came in the High Court and filed Regular Second Appeal No. 1315 of 1966, which was dismissed vide judgment and decree dated 4.4.1977 passed by Justice O. Chinnappa Reddy.

Still aggrieved by the three decisions, the defendants filed Civil Appeal No. 1343 of 1977 and the Hon''ble Supreme Court was pleased to allow the appeal and set aside the judgment dated 4.4.1977 passed by this Court, and remanded the matter for deciding the same afresh in accordance with law.

Before the Hon''ble Supreme Court the defendants-appellants brought to the notice of their Lordships an order dated Ist Sawan Sambat 1956 BK passed by the Maharaja of Patiala, and contended that this Farman of his Highness was not taken into consideration by the Court below. Had the said Farman been taken care of by the Courts, the suit of the plaintiffs-respondents would have been barred by time. Hon''ble the Supreme Court was also pleased to direct this Court to reconsider the matter in the light of the order of his Highness dated Ist of Sawan Sambat 1956 Bk. and other orders issued by his Highness earlier or later to the above order of Sambat 1956 Bk. if the same were placed by the parties in order to decide the controversy raised in the present case. It may be mentioned here that no other Farman of his Highness has been brought to my notice or placed on the file by either of the parties and, therefore, the present appeal will be disposed of in the light of the directions given by the Hon''ble Supreme Court and in the light of the submissions raised by the learned counsel for the parties and the evidence brought on the record of the trial Court.

I have heard Shri Arun Palli, Advocate, appearing on behalf of the appellants and Shri Jaswant Jain, Advocate, appearing on behalf of the respondents, and with their assistance have gone through the record of this case.

The parties addressed arguments on issue No. 4 and I shall confine my discussion on this issue. Learned counsel for the appellants has not assailed the findings of the trial Court as well as of the first appellate Court on issues Nos. 1, 2, 3 and 5. Therefore, the findings recorded by the Courts below on these issues are hereby affirmed.

Assailing the findings of the Courts below on issue No. 4, the learned counsel for the appellants submitted that both the Courts fell in error in holding that the suit of the plaintiffs was within limitation. There appears to be force in the argument of the learned counsel for the appellants. The proved facts are that the mortgage in question was executed in the year 1953 Bk. and the equivalent year would fall 1897 A.D. No period of redemption was fixed in the mortgage. Both the Courts below had calculated the limitation for redemption as 72 years, i.e., ''60 years as provided under the Limitation Act + 12 years on the plea that the mortgage was unregistered''. The suit was instituted on 16.12.1962. In para No. 20 of the judgment the trial Court has dealt with the point of limitation as follows:-

"20. Lastly, it was argued on behalf of the defendants that the acknowledgement should have been by all the mortgagees at one and the same time. No ruling in support of this contention that the acknowledgement, to be a valid acknowledgement, must be made by all the mortgagees at one and the same time has been produced before me. The learned counsel for the defendants has relied upon Hazari Kalwar Vs. Abdul Majid Khan, . But all these authorities only lay down that the acknowledgement of liability to redeem should be made by all the mortgagees so as to bind them all the acknowledgement by one of the several mortgagees will not keep the right to redeem, alive as against him or any of them. But none of these authorities, as stated above, lays down that the acknowledgement must be by all the mortgagees at one and the same time and by one document. The above rulings, therefore, do not help the defendants.

In the present case the acknowledgement are by all the mortgagees although on different occasions but all the acknowledgements are within 60 years of the institution of the present suit. Section 21(2) of the Limitation Act lays down that nothing in Sections 19 and 20 of the Act renders one of several joint contractors, partners, executors, or mortgagees, chargeable by reason only of written acknowledgment or of a payment made by, or by the agent of any other or others of them. The plain language of this provision of law does not give any indication that the acknowledgement should be by all the mortgagees at one and the same, time and by one document. It only lays down that the acknowledgement should be by all the mortgagees. To my mind, the requirement of law would be satisfied if all the mortgagees made the acknowledgement within the period of limitation although the acknowledgements are made by separate instruments at different times. My above inference finds support from the observations made in Hira Lal Ichha Lal Majumndar v. Narsi Lal Chatur Bhuj Das Desai (2 India Cases 469) wherein it has been observed at page 473 as under:-

The fact is that the mortgagees or their successors divided the mortgaged property and held it in severalty and that the acknowledgements were not signed at one time by all the mortgagees of that time or by each in respect of the whole of the mortgaged estate. There were separate acknowledgements each relating to a portion only of the whole property and each signed by the person interested in that portion. It seems to me that acknowledgements of the kind described were precisely those appropriate to the conditions of things created by the mortgagees themselves. On a consideration of the facts and of the law as to acknowledgement by mortgagees laid down in the Limitation Acts, I should hold that the acknowledgements in this case fulfil the requirements of the law."

I, therefore, hold that the acknowledgements by different mortgagees having been made within 60 years of the institution of the present suit would give fresh start to the limitation and the suit is not barred by limitation. It was argued on behalf of the defendants that the award having been made in favour of the defendants, although Balla was not a party to the award, and the defendants having taken possession in pursuance of the award, their title against Balla and other plaintiffs was adverse and so the period of limitation would be 12 years and as the suit has been filed beyond that period, the same is barred by limitation. This contention is totally devoid of force. My above view finds full support from the high authority of their Lordships of Supreme Court in Lilachand Tuljaram Gujar and Others Vs. Mallappa Tukaram Borgavi and Others, wherein at page 89 -para 5, it has been held as under:-

"It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. Therefore their possession had a lawful origin. A mere assertion of an adverse title on the part of the appellants cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation Prescribed for a suit for redemption. In view of the observation of the Judicial Committee in Khiarajmal v. Daim ILR 32 Cal 296, the learned advocate for the appellants did not seriously press the point of limitation any further."

In view of my above discussion, I hold the issue in favour of the plaintiffs. The learned first appellate Court has dealt with the point, of limitation and summed up his discussion in para Nos. 18 and 19 of the judgment. Incidentally the Farmans dated Ist Sawan, Sambat 1956 Bk, 4 Chet Sambat 1855 Bk. and Sambat 1948 Bk were referred before the first appellate Court, but it dealt with the issue in a different manner. According to the first appellate Court the mortgages were required to be effected by registered deed, therefore, the case law as referred to in Inder Singh v. Kishno and Ors. (1966) 68 P.L.R. 408, relates to the facts in hand as the mortgage deed in question was unregistered. Consequently, the period of limitation was taken as 72 years and it was held by the first appellate Court that the suit of the plaintiffs filed on 16.2.1962 was within limitation. Even the Farman dated Ist Sawan Sambat 1956 Bk was discussed by this Court in the judgment dated 4.4.1977, but in my opinion it should be read in extenso. Before I proceed further, it will be proper for me to cite the ratio of Inder Singh v. Kishno and Ors. (supra), wherein it was held as under:-

"That Article 148 of the Limitation Act provided for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged within a period of 60 years computing it from the time when the right to redemption or recover possession accrues. In case of an unregistered mortgage such a right did not accrue soon after the execution of the mortgage deed. It is only after the expiry of a period of 12 years that a valid mortgage comes into being by virtue of the expiry of the prescriptive period of 12 years. Hence the right to redeem or sue for possession under an unregistered mortgage accrues after the expiry of period of 12 years from the date of the execution of the mortgage. Therefore, the period of sixty years is to be counted from that date."

In the present case the sole controversy would be whether the mortgage could be redeemed within a period of 30 years, as contended by the learned counsel for the appellants, or within a period of 60 years as held earlier by the Courts below and also by the High Court. In Director of Endowments, Government of Hyderabad and Others Vs. Akram Ali, , it was held by the Hon''ble Supreme Court that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Farman was issued and his word was law. Similarly, all the Farmans issued by His Highness Maharaja of Patiala before the coming into force of the Constitution of India, had the force of law and this proposition has also not been disputed by the learned counsel appearing on behalf of the respondents-mortgagors. Farman No. 378 issued by the Maharaja of Patiala on Ist Sawan Sambat 1956 Bk. is to the following effect:-

"It has come to the notice of His Highness that in the absence of a general or specific law on limitation for hearing the cases the Courts do not act on uniform practice. In particular in the case of redemption of mortgage property, despite the fact that there is no order to the contrary or in favour of the courts of their own have adopted the limitation of 60 years. This practice need be chocked and rectified, therefore, His Highness is pleased to order that with regard to the redemption of the mortgaged property the limitation period be fixed as 30 years. It is, however, though advisable that notification/proclamation be issued giving 6 months'' time to effect that where the mortgaged properties have exceeded the above limitation so fixed or are nearing to get the property redeemed he should file a suit, otherwise, if the matter is clear and mortgagees have no objection then the mortgagors should get the mortgage deeds or writing revised within this limitation, failing which on the expiry of said limitation so fixed without prejudice to any law on this point such suit shall be barred by limitation and would not be entertained for hearing."

In the document of the above quoted Farman rules were framed and Rule 5 was to the effect, which again is reproduced as follows:-

"5. At this stage the dispute, between the parties with regard to redemption of mortgaged property for the purposes of filing suits, would be the causes of action and therefore it is advisable for all concerned that in compliance of the said proclamation and order, the person or persons, who is/are affected or to be effected should file the suits within the period of limitation so fixed."

As I submitted earlier the mortgage in dispute was executed on Chet Sudi 8, Sambat 1953 Bk, equivalent to 1897 A.D. This Farman at that time was in force as it came into force with effect from Ist of Sawan Sambat 1956 Bk and has clarified the decision that the period of limitation was 30 years. The mortgage was Unregistered and even if the concession of 12 years is given to the mortgagors for the redemption of the land apart from 30 years, as envisaged by the Farman, the mortgagors could file the suit for redemption within 42 years, i.e., upto 1937, but the present suit has been filed on 16.2.1962 on the assumption that the mortgagors are entitled to the period of limitation of redemption of 72 years, i.e., 60 years as provided under the Limitation Act, and 12 years due to unregistered mortgage. Therefore, the suit was hopelessly barred by time. Both the Courts below did not take into consideration the Farman issued by His Highness Maharaja of Patiala on Ist Sawan, Sambat 1956 Bk.

Now it is to be seen whether the suit of the plaintiff was within limitation from the date of the acknowledgements. The acknowledgments which were relied upon by the plaintiffs are PW-4/F, i.e. the Certified copy of the plaint of suit No. 265 instituted and decided on 22.4.1959 BK. corresponding to 11.8.1902 A.D. Another suit No. 362 was filed on 2.4.1964 Bk. decided on 22.7.1964 Bk and Exhibit PW-4/A is the Certified copy of the plaint. The trial Court took on erroneous view that if maximum of 60 years are given from the date of the institution of the suit, the present suit of the plaintiffs was within limitation. As I have submitted earlier, the Farman of the Maharaja, now relied upon by the appellants, has totally changed the fate of the respondents. The period was not rightly calculated. The respondents-plaintiffs could redeem the property maximum within a period of 42 years from the date of the mortgage, i.e., upto the year 1939 and the period of 60 years of limitation was not applicable for the mortgage in dispute. Learned Counsel for the respondents has not been able to show me any other time of acknowledgement from which the suit of the plaintiffs could be treated within limitation.

Resultantly, this appeal is allowed. The judgments and decrees of the Courts below are hereby set aside and the suit of the plaintiffs-respondents, i.e., the successors of the mortgagors, for possession by way of redemption is hereby dismissed, leaving the parties to bear their own costs.