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2001 DIGILAW 1001 (PNJ)

Gaura Devi v. Bal Mukand

2001-09-10

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This regular second appeal has been initially filed by Smt. Gaura Devi wife of Sh. Dev Raj and Sh. Gita Ram son of Dev Raj, but later on appellant Nos. 3 to 5 were added as co-appellants along with Smt. Gaura Devi and Gita Ram. 2. The challenge in this regular second appeal has been given to the judgment and decree dated 12.5.1980 passed by the Court of District Judge, Faridkot who confirmed the judgment and decree dated 8th March, 1979 passed by the Court of Sub Judge Ist Class, Faridkot who gave a declaration and granted a decree for joint possession of the shop in dispute vide plan Exhibit D-1/2 on payment of Rs. 1500/- against Sita Ram defendant No. 3 and in favour of the plaintiffs Smt. Gaura Devi and Sh. Gita Ram. 3. The case set up by the plaintiffs Shri Gita Ram and Smt. Gaura Devi in the trial Court was that the property in dispute was the ownership of Devi Ditta son of Shri Jiwan Dass who mortgaged the same with possession with Bal Mukand (defendant No. 1) for a consideration of Rs. 9000/- vide registered mortgaged deed dated 14th Sawan 2007 BK, equivalent to 2.8.1950 with a contention that mortgage could be redeemed back after one year. Devi Ditta died about 22-23 years back before filing of the suit and according to the plaintiffs, he was survived by his three sons, namely Ram Balab, Chaman Lal and Ram Niwas and each one of them succeeded to the estate of 1/3rd share equally. Further, Shri Ram Balab sold his 1/3rd share of the shop to Ram Dial. Puran Chand, Gaja Nand and Mohinder Kumar for a sum of Rs. 5333/- and he executed a sale deed dated 10.11.1974. Similarly, Shri Chaman Lal sold his 1/3rd share of the shop to the same vendees on the same day and for the same consideration. It is further alleged by the plaintiffs that Sarvshri Ram Dial, and Puran Chand forfeited their share in the shop by relinquishing their right, title or interest by way of family settlement in favour of Shri Mohinder Kumar and Gaja Nand. Thus, Gaja Nand and Mohinder Kumar become owner to the extent of 2/3rd share. It is further alleged by the plaintiffs that Sarvshri Ram Dial, and Puran Chand forfeited their share in the shop by relinquishing their right, title or interest by way of family settlement in favour of Shri Mohinder Kumar and Gaja Nand. Thus, Gaja Nand and Mohinder Kumar become owner to the extent of 2/3rd share. On the death of Gaja Nand, he was survived by his widow Smt. Sat Bhama, son Bharat Bhushan, and daughters Kaushalya Devi, Ram Devi, Prem Kumari and Suman. Mohinder Kumar and the heirs of Gaja Nand sold 2/3rd share of the disputed shop to Smt. Gaura Devi and Gita Ram plaintiffs in equal share for a sum of Rs. 20,000/- by way of registered sale deed dated 19.4.1973. On the strength of the sale deed, the plaintiffs pleaded that they are entitled to redeem 2/3rd share of the shop in question on payment of Rs. 6000/- or in the alternative to redeem the whole of the shop on payment of Rs. 9000/- from defendant No. 1. 4. Defendant Nos. 2 to 6 claim that they are in possession of the shop as tenants and, as such, they have been impleaded as defendants. Defendant No. 1 Shri Bal Mukand failed to allow the redemption in favour of the plaintiffs despite the service of notice. Hence the suit for redemption. 5. Notice of the suit was given to the defendants. Defendant No. 1 Shri Bal Mukand contested the suit by filing the written statement. He admitted the fact that the shop in dispute was mortgaged in his favour by Shri Devi Ditta with possession for a sum of Rs. 9000/- on 2.8.1980. He denied the other allegations of the plaintiffs like Devi Ditta was survived by his three sons or that the plaintiffs had purchased 2/3rd share of the shop from the vendees from two of the three sons of Devi Ditta. Defendant No. 1 pleaded that he had spent Rs. 2000/- on unnecessary repairs of the shop and he was entitled to recover this amount along with Rs. 700/- due to him by way of interest under the terms of the mortgage. 6. The suit was also contested by defendant Nos. 2 to 5 who filed joint written statement. They admitted the fact of mortgage by Devi Ditta in favour Rs. 9000/- to the mortgagee defendant No. 1. They admitted that Devi Ditta had died. 700/- due to him by way of interest under the terms of the mortgage. 6. The suit was also contested by defendant Nos. 2 to 5 who filed joint written statement. They admitted the fact of mortgage by Devi Ditta in favour Rs. 9000/- to the mortgagee defendant No. 1. They admitted that Devi Ditta had died. These defendants, however, denied that Devi Ditta was survived by his three sons, namely, Ram Dial, Puran Chand, Gaja Nand. According to these defendants, Devi Ditta had three daughters namely Shanti Devi, Bhati Bhai and Gayatri Devi and they also succeeded to the state of Devi Ditta along with their brothers and, as such, the share of Ram Balab and Chaman Lal was not more than 1/6th each in the disputed shop. By denying that there was any family partition or settlement between the vendees of Ram Balab and Shri Chaman Lal, the defendants pleaded that plaintiffs have not become owners of any share in the shop on the basis of sale deed, if any, effected in their favour by Mohinder Kumar and the heirs of Gaja Nand. They have denied for want of knowledge that plaintiffs had purchased any share in the shop in dispute from Mohinder Kumar and the heirs of Gaja Nand. It was further pleaded by defendant Nos. 2 to 5 that out of them, Sita Ram defendant No. 3 purchased 1/3rd share in the disputed shop from Shri Ram Niwas and Smt. Gayatri Devi daughter of Devi Ditta and he was a co-sharer in the shop. During the pendency of the suit, defendant Nos. 2 to 5 got their written statement amended and it was further pleaded that on 6.11.1978 Sita Ram defendant No. 3 had redeemed the mortgage in question by payment of defendant No. 1 who executed endorsement at the back of the mortgage deed and, as such, Sita Ram defendant No. 3 stands subrogated to defendant No. 1 except the sale of shares of Ram Niwas and Gayatri Devi. The plaintiffs filed rejoinder in which they reiterated their case made in the plaint by denying those of the written statement and from the pleadings of the parties, the trial Court framed the following issues : 1. The plaintiffs filed rejoinder in which they reiterated their case made in the plaint by denying those of the written statement and from the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiffs have become owners of the shop in dispute to the extent of 2/3rd share and are thus entitled to redeem its mortgage effected with defendant No. 1 vide registered mortgage deed dated 14 Sawan Samat 2007 BK ? OPP. 2. Whether defendant No. 1 is entitled to receive Rs. 2700/- by way of amount spent on repairs and interest besides the mortgage amount of Rs. 9000/- ? OPD 2-A. Whether the mortgage has been redeemed by the mortgagees in favour of defendant No. 3 receiving Rs. 9000/- ? If so, when and with what effect ? OPD 3. Relief. 7. The parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was partly decided in favour of the plaintiffs and it was held that plaintiffs had become the owner of the shop in dispute to the extent of 1/3rd share. Rest of the issue was decided against the plaintiffs. Issue No. 2 was decided against the defendants. Issue No. 2-A was also decided in favour of the defendants and finally a decree for joint possession of the shop in dispute was passed in favour of the plaintiffs holding that on payment of Rs. 1500/- to Sita Ram defendant No. 3, the plaintiffs will be entitled to this declaration. No relief of redemption was granted. The plaintiffs filed first appeal before the Court of District Judge, Faridkot who dismissed the appeal of the plaintiffs by affirming the judgment and decree of the trial Court and the appeal of the appellants/plaintiffs was dismissed vide the impugned judgment and decree dated 12.5.1980. Still not satisfied with the judgment and decree of the Courts below, the present regular second appeal. 8. I have heard Shri M.L. Sarin, learned senior Advocate on behalf of the plaintiffs/appellants and Shri B.S. Jaswal, on behalf of the respondents and with their assistance, have gone through the record of the case. It may be mentioned here that during the pendency of this appeal the plaintiffs filed Civil Misc. 8. I have heard Shri M.L. Sarin, learned senior Advocate on behalf of the plaintiffs/appellants and Shri B.S. Jaswal, on behalf of the respondents and with their assistance, have gone through the record of the case. It may be mentioned here that during the pendency of this appeal the plaintiffs filed Civil Misc. No. 6937-C of 2001 under Order 41, Rule 27 C.P.C. praying that they may be allowed to place on record a "memorandum of partition" dated 29.4.1985 vide which Sarvshri Ram Dial and Puran Chand have relinquished their right, title or interest with respect to the property in dispute in favour of Shri Gaja Nand and Mohinder Kumar. The learned counsel for the appellants submitted that the trial Court as well as the first appellate Court has committed an illegality by holding that there is no valid proof with regard to the relinquishment of the share by Sh. Ram Dial and Puran Chand in favour of Gaja Nand and Mohinder Kumar and, therefore, they are not entitled to a declaration of 2/3rd share in the property. It was also prayed in the application that the plaintiffs/appellants may be allowed to place on record a copy of the judgment dated 10.12.1986 on the record. The submission of the learned counsel for the appellants cannot be accepted in the application under Order 41, Rule 27 C.P.C. for the simple reason that this document was never relied upon by the plaintiffs in the plaint in the trial Court. Rather a different case was set up by the plaintiffs. It is averred in para No. 5 of the plaint that Shri Mohinder Kumar and Gaja Nand became exclusive owners of 2/3rd share of the shop in dispute as Ram Dial and Puran Chand forfeited their share in the shop in dispute to Mohinder Kumar and Gaja Nand vide family settlement and family partition dated........... meaning thereby that the plaintiffs were relying upon a family settlement and family partition which was allegedly executed earlier to the date of the filing of the suit which was instituted on 19.10.1970, whereas the deed which is being relied upon by the plaintiffs is of the year 1986. The date has been left blank in the plaint itself, meaning thereby that no family settlement/family partition had taken place between Ram Dial, Puran Chand, Gaja Nand and Mohinder Kumar. The date has been left blank in the plaint itself, meaning thereby that no family settlement/family partition had taken place between Ram Dial, Puran Chand, Gaja Nand and Mohinder Kumar. In these circumstances, when there is no valid proof of any relinquishment of right, title or interest by Shri Puran Chand Ram Dial in favour of Gaja Nand and Mohinder Kumar such a plea cannot be allowed to be taken with the help of proposed additional evidence which has come into existence after a lapse of about 16 years. Moreover, the deed of partition relied upon is neither stamped nor registered and the contents of the proposed additional evidence shows that this document requires registration and stamp. Be that as it may, I do not want to give permission to the appellants for leading additional evidence under Order 41, Rule 27 C.P.C. Therefore, at the first instance I dismiss the application under Order 41, Rule 27 C.P.C. 9. As I stated earlier, the plaintiffs alleged that they have become the owner to the extent of 2/3rd share in the property and, therefore, they are entitled to the redemption of the property on payment of Rs. 6000/- or in the alternative on payment of Rs. 9000/-. In these circumstances, the first point for determination would be whether the plaintiffs are entitled to a declaration that they are owners to the extent of 2/3rd share in the property. Let us see what is the case pleaded. The pleaded case of the plaintiffs is that they had purchased 2/3rd share from Mohinder Kumar, Bharat Bhusan and other heirs of Gaja Nand vide sale deed dated 19.4.1973 and, therefore, they are in possession of the said shop and also entitled to the redemption. Is it so, is a point to be seen. Let me again revert to the basic facts of this case. Shri Devi Ditta is the original owner of the property and he mortgaged the shop in question with possession with defendant No. 1 on 14th Sawan 2007. It is also the common case of the parties that Shri Devi Ditta died after the enforcement of the Hindu Succession Act. Let me again revert to the basic facts of this case. Shri Devi Ditta is the original owner of the property and he mortgaged the shop in question with possession with defendant No. 1 on 14th Sawan 2007. It is also the common case of the parties that Shri Devi Ditta died after the enforcement of the Hindu Succession Act. It has come in evidence that Shri Devi Ditta had three sons, namely Ram Balab, Chaman Lal and Ram Niwas and he had also three daughters, meaning thereby that after the death of Devi Ditta, his estate will devolve upon three sons and three daughters in equal shares meaning thereby that Shri Ram Balab, Chaman Lal and Ram Niwas will each inherit 1/6th share like their sisters including Gayatri Devi. Further the evidence on record is that Shri Ram Balab sold his right, title or interest in favour of Ram Dial, Puran Chand, Gaja Nand and Mohinder Kumar. Similarly, Shri Chaman Lal sold his right, title or interest in the property in favour of these very vendees vide registered sale deed. Sarvshri Ram Balab and Chaman Lal were owners of 1/3rd share in the shop of Devi Ditta jointly and half of the property devolved upon the three daughters of Devi Ditta. Similarly, 1/6th share of the property was inherited by Shri Ram Niwas, the real brother of Ram Balab and Chaman Lal. The case set up by the plaintiffs further is that Sarvshri Ram Dial and Puran Chand had relinquished their right, title or interest in the property in favour of Gaja Nand and Mohinder Kumar, but there is no evidence to this effect. There is no documentary evidence vide which Ram Dial and Puran Chand had relinquished their right, title or interest either by sale deed or by way of family settlement in favour of Gaja Nand and Mohinder Kumar. The present plaintiffs Shri Gita Ram and Smt. Gaura Devi had purchased the right, title or interest of Gaja Nand and Mohinder Kumar through the heir of Gaja Nand and Mohinder Kumar. Thus, they are only entitled to 1/6th share and not 2/3rd share as 1/6th share shall still remain vested with Ram Dial and Puran Chand as there is no valid document with regard to their relinquishment in favour of Gaja Nand and Mohinder Kumar. Thus, they are only entitled to 1/6th share and not 2/3rd share as 1/6th share shall still remain vested with Ram Dial and Puran Chand as there is no valid document with regard to their relinquishment in favour of Gaja Nand and Mohinder Kumar. The rights, title or interest of heirs of Gaja Nand and Mohinder Kumar were purchased by the plaintiffs vide sale deed dated 19.4.1973 Exhibit P-1 and to that extent they were entitled to the equity of redemption. It has further come in the evidence of defendant No. 1 Bal Mukand who has stated that he redeemed the property to Sita Ram and has received Rs. 9000/- from him vide endorsement Exhibit D-3. This endorsement Exhibit D-1/1 stands proved at the back of the mortgage deed itself. Similar is the statement of Shri Sita Ram that he got the disputed mortgage released from Bal Mukand vide receipt Exhibit D-3 and he got the possession on the basis of the redemption. This was redeemed on 6.11.1978. In other words, the mortgage had already been redeemed by Shri Sita Ram from Shri Bal Mukand. Once there is a redemption the plaintiffs cannot claim relief of redemption. As I held above that the plaintiffs had purchased 1/6th share of the property on 10.11.1964 while 1/3rd share of the equity of redemption was purchased by Sita Ram defendant No. 3 from Shri Ram Niwas and Smt. Gayatri Devi i.e. 3rd son of Devi Ditta and one daughter of Devi Ditta on 18.9.1969 for a sum of Rs. 9800/- vide registered sale deed Exhibit D-1. If defendant No. 3 had got the property redeemed from Shri Bal Mukand on the basis of equity of redemption, he had the right to do so. Shri Bal Mukand was under legal obligation to redeem the property. In these circumstances, the right of the plaintiffs on the basis of their purchase of equity of redemption is to file a suit for partition as they have become co-sharers with the other vendees i.e defendant No. 3 who purchased the interest of Ram Niwas as well as Gayatri Devi and he also got the possession in the capacity as mortgagee by paying the mortgage amount to Shri Bal Mukand. This aspect of the case has been discussed by the trial Court in a right manner. This aspect of the case has been discussed by the trial Court in a right manner. Therefore, I do not want to interfere with the findings of the trial Court as well as the first Appellate Court and, thus, I affirm the findings of the trial Court on all the issues. I do not see any merit in this appeal which is hereby dismissed with no order as to costs. Appeal dismissed.