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1992 DIGILAW 1103 (ALL)

Leeladhar v. Natho

1992-08-20

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member. - The facts of the case are that Het Ram was the original tenant of the land in dispute. He was succeeded by his three sons, Magali, Misri Lal and Dhakan. Mangali was succeeded by his son Leeladhar, the present appellant in this second appeal. Misri Lal was succeeded by his widow Smt. Dularo and Dhakan was succeeded by his son Kalloo. The successors. Have 1/3rd share each. The property of Het Ram was mortgaged to one Ali Hasan and was subsequently redeemed. After redemption, Kallo and leeladhar were recorded and the branch of Misri Lal was omitted. The plaintiff's case is that Mangali died first and smt. Dularo later on and so the share of Smt. Dularo, widwo of Misri Lal, will go to her daughter Smt. Natho. The case of the appellant Leeladhar is that Smt. Dularo was first to die and so her share will go to Mangali. The appellant Leeladhar is that Smt. Dularo was first to died and so her share will to Mangali. The appellant Leeladhar will thus be entitled to 2/3 share, 1/3 share from his father and 1/3 share from Smt. Dularo. The crux of the problem is as to who died first. In case mangali died during the lifetime of Smt Dularo the share of Misri Lal will go to Smt. Natho. but in the event of Smt. Dularo having been died before Mangali, the share of Misri Lal will go to his brother Mangali and not to his married daughter. The learned trial court dismissed the suit for Smt. Natho on 7-1-85, the plaintiffs appeal was allowed by the learned Addl. Commissioner on 27-3-1987. 2. I have heard the learned counsel for the parties. The first submission made by Sri K.G. Srivastava, learned counsel for the appellant is that after redemption of the land in dispute, the branch of Misri lal was out of possession for more than 12 years. The suit was, therefore, time barred. Since the question of limitation was not decided, the case should be remanded back to the learned trial court for decision afresh. His second submissions is that Smt. Dularo died in 1969 and not in 1976 as asserted by the plaintiff-respondent justifying the findings of the learned trial court, the learned counsel has assailed the findings of the learned Addl. Commissioner. According to him, the learned Addl. His second submissions is that Smt. Dularo died in 1969 and not in 1976 as asserted by the plaintiff-respondent justifying the findings of the learned trial court, the learned counsel has assailed the findings of the learned Addl. Commissioner. According to him, the learned Addl. Commissioner has placed reliance on the death register maintained by 'SHAMSHAN BHUMI' which is a private body and not registered. The learned Addl. Commissioner has also fallen into error when he observed that when Smt. Natho was alive why should her husband make mutation application. He has also drawn my attention to the statement of the husband of Smt. Natho and the statement of Smt. Natho which proved that Smt. Dularo died in 169. His third submission is that in second appeal the court has unfettered jurisdiction to confirm or reject the findings of the courts below and give its own findings. 3. Sri Rajiv gupta appeared for Kaloo. His only submission is that 1/3 share of Kalloo shall remain intact. 4. Shri Hari Shanker and Sri T.S. Dabas appeared for the plaintiff-respondent. They have urged that the appeal deserves to be dismissed outright because no substantial question of law is involved as required under Section 100, C.P.C. and Section 331 (4) of the Act. Their second submission is that Section 60 of the Transfer of Property Act contemplates no partial redemption. When two brothers redeemed their property, they stepped into the shoes of the third brother and the right of the third brother shall remain intact irrespective of the fact that his name we recorded or not after redemption. In reply, the learned counsel for the appellant has submitted that under Section 164 of the Act the mortgage is sale and after sale the right of the mortgagor is distinguished. 5. I have carefully considered the arguments advanced before me and have also perused the record. The learne Addl. Commissioner has given findings of fact on the question of death of Smt. Dularo and Mangali. Dealing with the death of Smt. Dularo and Mangali. Dealing with the death register maintained by the 'SHAMSHAN BHUMI' Hajipur and two death certificates-one in respect of Mangali and the other in respect of Smt. Dularo, the learned Commissioner observes that Mangali died on 29-9-1975 and Smt. Dularo died on 22-10-1976. He finds the entries made in the register in proper form having been done in normal way. Dealing with the death register maintained by the 'SHAMSHAN BHUMI' Hajipur and two death certificates-one in respect of Mangali and the other in respect of Smt. Dularo, the learned Commissioner observes that Mangali died on 29-9-1975 and Smt. Dularo died on 22-10-1976. He finds the entries made in the register in proper form having been done in normal way. He also does not find any cutting, over-writing or interpolation in the register. On the other hand, the defendant respondent only mentioned the date of death of Smt. Dularo in 1969. But they failed to show the date of death of Mangali after Smt. Dularo. The learned Addl. Commissioner also does not find any contradiction in the statement of D.Ws. about the death of Smt. Dularo. As regards the finger-print expert, he has rejected his testimony on the ground that out of 15 points, points are dissimilar and that his testimony does not find any support from any other evidence. It is well established that a finding of fact, however, erroneous, is not to disturbed in the second appeal. If the findings of the learned Addl. Commissioner are made subject to scrutiny, it will tantamount to reappraisal of evidence. The Submission made by the learned counsel for the appellant on this point is, therefore, not tenable. 6. As regards the question limitation, the submission made by the learned counsel for the appellant does not carry any force. Partial redemption of the property is prohibited. It, therefore, follows that the entire property in dispute was redeemed. After redemption, the right of a co-sharer shall remain intact irrespective of the facts whether he is in possession or not. The possession of one co-sharer is the possession of all and the right of a co-sharer who has not been recorded after redemption will not be extinguished. 7. Now, let us proceed to examine the contention that a mortgage is sale under Section 164 of the act. There is no doubt it that a mortgage with possession is a sale and the bhumidhari rights are extinguished after a mortgagee enters into possession. But it should also be borne in mind that since the possession of the disputed land was delivered with certain conditions and the main condition being that a mortgagor has right to redeem the property after payment of the mortgaged money to the mortgagee. But it should also be borne in mind that since the possession of the disputed land was delivered with certain conditions and the main condition being that a mortgagor has right to redeem the property after payment of the mortgaged money to the mortgagee. A mortgagor will not be deprived of his share by virtue of such conditional sale after the property is redeemed. A mortgage does not plea an embargo on the rights and title of the shareholder. 8. In view of the above discussions, I do not find any merit in this second appeal which is dismissed.