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2001 DIGILAW 921 (PNJ)

Avtar Singh v. Parkash Kaur

2001-08-24

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - Suit for possession by way of redemption of one shop No. Khana Shumari 168-169-B/XIII old 2430/XIII-20 blue plate situated in Main Bazar, Nawankot Amritsar filed by Gurbachan Singh son of Lal Singh resident of Nawankot, Amritsar (dead) represented by his wife Parkash Kaur, sons Satnam Singh, Surjit Singh and daughter Bhupinder Kaur against Smt. Balwant Kaur wife of Avtar Singh, Avtar Singh son of Kishan Singh Bhatia and Daljit Singh son of Avtar Singh in the Court of Sub-Judge Ist Class, Amritsar was preliminarily decreed for possession through redemption in their favour on their paying Rs. 2200/- to them (defendants) vide order dated 16.4.1984. Defendants appeal was also dismissed by the Additional District Judge, Amritsar vide order dated 14.4.1986. 2. Still not satisfied, they have come up in appeal to this Court. 3. During the pendency of the appeal before this Court, Avtar Singh died. In his place his wife Balwant Kaur Son Daljit Singh, daughters Rajinder Kaur, Charanjit Kaur, Bhupinder Kaur, Amritpal Singh. Tejpal Singh Lovli, Pappi, children of his predeceased daughter Jasbir Kaur brought on record. 4. Gurbachan Singh son of Lal Singh Bhatia (dead) represented by his wife Parkash Kaur and others was owner of one shop as described in papa No. 1 of the plaint. That shop was purchased by him vide sale deed dated 22.10.1964 registered on 23.10.1964 from defendant Avtar Singh son of Kishan Singh Bhatia, vide mortgage deed dated 23.10.1964 plaintiff mortgaged the said shop possession for Rs. 2200/- to Smt. Balwant Kaur wife of Avtar Singh. The shop was being occupied by her husband Avtar Singh and son Daljit Singh under Smt. Balwant Kaur. They are in occupation of the shop as her husband and son respectively. They did not have any existence of their own. They derived title from Smt. Balwant Kaur. As such, they are liable to restore possession on redemption of the shop to the plaintiff, as their right to occupation will come to and end as soon as mortgage is redeemed. With the redemption of the mortgage, the right of the mortgagee will come to an end with the coming to an end the right of mortgagee, defendants Avtar Singh and Daljit Singh would not have any claim to keep occupying the shop. They were impleaded in the suit so that the resultant judgment against Balwant Kaur bound them. With the redemption of the mortgage, the right of the mortgagee will come to an end with the coming to an end the right of mortgagee, defendants Avtar Singh and Daljit Singh would not have any claim to keep occupying the shop. They were impleaded in the suit so that the resultant judgment against Balwant Kaur bound them. Among others the terms of the mortgage were that the interest on the mortgage amount would be equal to the rent and profit of the mortgaged property and the mortgagor would not enforce the right to redeem before the expiry of the 17 years from the date of mortgage for getting back possession. It was after they expiry of the said period that the mortgagor would be entitled to enforce his right to redeem and get back possession. Husband and son of Balwant Kaur carried on business in the shop in their capacity as husband and son of Balwant Kaur and they would not be deemed as tenant is also term of the mortgage. On the expiry of the period stipulated in the mortgage deed, the plaintiff called upon mortgagee Balwant Kaur to receive Rs. 2200/- and redeem the mortgage and deliver him back possession of the shop but to no effect. 5. Smt. Balwant Kaur-defendant No. 1 contested the suit of the plaintiff. It was denied that the plaintiff. was owner of the property in suit. She is the real sister of the plaintiff, Property in suit was purchased by her husband Avtar Singh from the Rehabilitation Department for consideration through regular deed of conveyance which was subsequently registered before the Sub-Registrar, Amritsar on 23.10.1964. Her husband is exclusive owner of the property and he in possession for the last about 34 years. It was denied that this property was mortgaged by the plaintiff with her. She never appeared before the Sub-Registrar nor before any other person in connection with any mortgage deed. She never received any sum of Rs. 2200/- in her capacity as a mortgagee. There was no occasion for the plaintiff to deliver its possession to the defendant nor was there any occasion for her to deliver its possession to her husband. It was denied that she is liable to restore possession to the plaintiff. Mortgagee never came into existence. There was no relationship of mortgagor and mortgage between the plaintiff and her. There was no occasion for the plaintiff to deliver its possession to the defendant nor was there any occasion for her to deliver its possession to her husband. It was denied that she is liable to restore possession to the plaintiff. Mortgagee never came into existence. There was no relationship of mortgagor and mortgage between the plaintiff and her. No such relationship ever came into existence. No question of delivery of possession to the plaintiff ever arose. 6. On the pleadings of the parties, issues were framed by the learned trial Court. Plaintiffs suit for possession through redemption was decreed by the Sub-Judge Ist Class, Amritsar vide order dated 16.4.1984 in view of his finding that the plaintiff was owner of the shop. He had purchased this shop from Avtar Singh vide sale deed Ex. P2 dated 22/23.10. 1964 registered at Sr. No. 1703, Bhai No. 1 of Sub-Registrar, Amritsar. It was found that this sale deed was preceded by an agreement to sell dated 16.9.1961 Ex. P-1 executed by Avtar Singh in his favour. It was found that the plaintiff mortgaged this shop with possession with Smt. Balwant Kaur-defendant vide mortgage deed dated 23.10.1964 for a sum of Rs. 2200/-. It was found that possession of the shop was given to Balwant Kaur and that her husband Avtar Singh and son Daljit Singh are carrying on the business in the shop as her husband and son respectively and they do not have any existence of their own. It was found that on redemption of the mortgage, the right, title and interest of Balwant Kaur, Avtar Singh and Daljit Singh have to quit the shop as with the redemption of mortgage, the mortgagees right to continue in possession comes to an end. It was found that the sale deed executed by Avtar Singh in favour of the plaintiff on 22/23.10.1964 was a genuine sale deed and that it was not a sham transaction. 7. It was submitted by the learned counsel for the appellants that Avtar Singh-appellant was the owner of this shop. He had purchased it from the Rehabilitation Department through a conveyance deed dated 17.10.1964. It was submitted that there was no occasion for him to have agreed to sell this shop to Gurbachan Singh vide agreement to sell dated 16.9.1961 as on 16.9.1961, he was not owner of this shop. He had purchased it from the Rehabilitation Department through a conveyance deed dated 17.10.1964. It was submitted that there was no occasion for him to have agreed to sell this shop to Gurbachan Singh vide agreement to sell dated 16.9.1961 as on 16.9.1961, he was not owner of this shop. On 16.9.1961, Rehabilitation Department was the owner of the shop. It was submitted that there was no occasion for him to have sold this shop on 22.10.1964 when he himself had purchased the shop through a regular conveyance dated 17.10.1964 from the Rehabilitation Department. 8. Learned counsel for the respondents on the hand submitted that Avtar Singh was the owner of the shop. He purchased this shop through conveyance deed dated 17.10.1964 executed in his favour by the Rehabilitation Department and he sold the shop to Gurbachan Singh vide sale deed Ex. P-2 dated 22.10.1964 registered on 23.10.1964 for a consideration of Rs. 2200/-. Sale deed Ex. P-2 was attested by Mohinder Singh, Dalip Singh and one Pt. Gian Chand, Municipal Commissioner, Nawankot, Amritsar. It was scribed by Sh. Arjan Wasika Niwas. It was submitted by him that this sale deed was preceded by an agreement to sell Ex. P-1 dated 16.9.1961 executed by Avtar Singh in favour of Gurbachan Singh. Vide this agreement Avtar Singh agreed to sell the shop to Gurbachan Singh for a sum of Rs. 2200/-. 9. Arjan Dass Malik PW-1 stated that he is the scribe of agreement to sell Ex. P-1 dated 16.9.1961. Through this agreement Avtar Singh agreed to sell the property in dispute to Gurbachan Singh. He stated that he made entry with regard to agreement P-1 in his petition writer register. He stated that Avtar Singh made note in his own hand mark A on agreement Ex. P-1 as the receipt of Rs. 500/- in cash by him at the time of execution of this agreement. He further stated that he scribed sale deed Ex. P-2 dated 22.10.1964 in favour of Gurbachan Singh at the instance of Avtar Singh. Sale deed Ex. P-2 was attested by Mohinder Singh, Dalip Singh and Pt Gian Chand, Municipal Commissioner, Nawankot, Amritsar. It was registered on 23.10.1964 by the Sub-Registrar, Amritsar. A sum of Rs. 17,00/- was received by Avtar Singh from Gurbachan Singh in the presence of Sub-Registrar. Dalip Singh and Pt. Gian Chand appeared before the Sub-Registrar. Sale deed Ex. P-2 was attested by Mohinder Singh, Dalip Singh and Pt Gian Chand, Municipal Commissioner, Nawankot, Amritsar. It was registered on 23.10.1964 by the Sub-Registrar, Amritsar. A sum of Rs. 17,00/- was received by Avtar Singh from Gurbachan Singh in the presence of Sub-Registrar. Dalip Singh and Pt. Gian Chand appeared before the Sub-Registrar. They identified Avtar Singh and Gurbachan Singh. He further stated that on 23.10.1964, he scribed mortgage deed at the instance of Gurbachan Singh in favour of Balwant Kaur, whereby he mortgaged this shop with possession with Balwant Kaur for a sum of Rs. 2200/- Ex. PW3/1 is its certified copy. He stated that mortgage deed was thumb marked/signed in Punjab by Gurbachan Singh. It was attested by Pt. Gian Chand who signed in English. It was attested by Dalip Singh who signed in Urdu. It was attested by Hardial Singh in Urdu. Balwant Kaur signed in Punjabi. It was registered by Sub-Registrar. Before the Sub-Registrar, Dalip Singh and Pt Gian Chand appeared. Avtar Singh appeared on behalf of his wife Balwant Kaur. A sum of Rs. 2200/- was paid in the presence of Sub-Registrar to Gurbachan Singh. Arjan Dass Malik PW-1 stated that mortgage deed was read over to Gurbachan Singh only as other party Balwant Kaur was not present at the time of execution. In his deed writer registers entry dated 23.10.1964, signatures as well thumb impression of Gurbachan Singh are there. Nothing is written as regards the presence of Avtar Singh and as regards the execution of mortgage deed. Ex. PW/3/1 is the certified copy of the mortgage deed. Original mortgage deed was in possession of Balwant Kaur. Notice under order 12 Rule, 8 CPC was given to her calling upon her to produce the original mortgage deed. It was after she had failed to produce the original mortgage deed that the Court allowed LRs of late Gurbachan Singh to prove the mortgage deed by secondary evidence. 10. It is not a case where LRs of Gurbachan Singh led secondary evidence to prove the mortgage deed, without asking for the permission of the Court to lead Secondary evidence. It is true that there production of the certified copy of a registered deed cannot constitute secondary evidence. In Bachittar Singh v. Rajinder Singh, 1983 PLJ 172, it was held that mere placing on record certified copy does not amount to proof of original. It is true that there production of the certified copy of a registered deed cannot constitute secondary evidence. In Bachittar Singh v. Rajinder Singh, 1983 PLJ 172, it was held that mere placing on record certified copy does not amount to proof of original. 11. Now the question arises what can constitute the secondary evidence of the mortgage deed dated 23/24.10.1964. Arjan Dass PW-1 who is the scribe of this mortgage deed has candidly stated about its execution by Gurbachan Singh in favour of Balwant Kaur. Certified copy Ex. PW3/1 of this mortgage deed shows that Balwant Kaur was present at the time of its execution. Assuming that she was not present at the time of its execution, she was present before the Sub-Registrar through her husband Avtar Singh. 12. Learned counsel for the appellants submitted that the mortgage deed can not be said to have been duly proved when no attesting witnesses there of has been produced to it was submitted that mortgage deed was attested by Hardial Singh. Dalip Singh and Pt. Gian Chand. None of them has been produced. It was submitted that at least one of its attesting witnesses if alive should have been produced which is the intendment of Section 59 of the Transfer of Property Act read with Section 68 of the Evidence Act. 13. Avtar Singh DW-3 who was examined on 4.1.1984 stated that Dalip Singh is still alive. He stated that he has gone outside Amritsar and he does not know where he has gone. It was suggested to him that he is dead. He denied this suggestion and stuck to his statement that Dalip Singh is alive. 14. Learned counsel for the appellants submitted that mortgage deed cannot be said to have been duly proved inasmuch as one of the attesting witnesses if alive should have been produced but was not produced. In support of this submission, he drew my attention to Sardara Singh and another v. Harbhajan Singh and others, AIR 1974 P&H 345, where it was held that only Sections 54, 107 and 123 of the T.P. Act have been extended to Punjab. In support of this submission, he drew my attention to Sardara Singh and another v. Harbhajan Singh and others, AIR 1974 P&H 345, where it was held that only Sections 54, 107 and 123 of the T.P. Act have been extended to Punjab. The scheme of the Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Act, an exchange can be made only in the manner provided for a sale. Hence, it would be incorrect to say that the exchange must take its colour from Section 54 and whatever are the requirements of Section 54 must per se apply to an exchange. 15. In this case question for consideration before their Lordships was whether in Punjab exchange does not requrie registration. Oral exchange is permissible. Mortgage is required registration and they held that in Punjab exchange does not require registration. Oral exchange is permissible. Mortgage is required by law to be attested by two witnesses it is required to be proved by the testimony of at least one attesting witness if he is alive. Just as in case of a registered Will, it is the requirement of Section 63 of the Indian Succession Act that a Will has to be proved by the testimony of at least one attesting witness if he is alive. 16. Section 68 of the Evidence Act reads as follows : "Section 68 if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence : Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." 17. Avtar Singh (defendant) DW-3 has not denied the sale deed Ex. P-1 and mortgage deed certified copy of which is Ex. PW/3/1. Avtar Singh (defendant) DW-3 has not denied the sale deed Ex. P-1 and mortgage deed certified copy of which is Ex. PW/3/1. All that he has stated is that at the time when the alleged agreement to sell Ex. P-1 was executed in favour of Gurbachan Singh he had no ownership or proprietary rights in the property. Agreement Ex P-1 is a sham transaction. He had no intention to transfer the proprietary/ownership right with respect to this property. Sale deed is also a sham transaction. At that time value of the shop was to this property. Sale deed is also a sham transaction. At that time value of the shop was Rs. 8000/9000/-. He did not take any amount of Rs. 2200/-. Gurbachan Singh never mortgaged his property with Balwant Kaur nor Balwant Kaur took possession of the shop from Gurbachan Singh. He stated that he was in possession of the shop since the year, 1946 when this shop was allotted to him. He got the sale certificate on 17.10.1964. It was got registered in the officer of Sub-Registrar on 23.10.1964. He has no explanation how he figures as representing his wife before the Sub-Registrar at the time when mortgage deed was produced for registration. Sale-deed in favour of Gurbachan Singh was registered on 23.10.1964. Mortgage deed was registered on 24.10.1964. Gurbachan Singh thus mortgage after he had become owner. 18. Learned counsel for the respondents submitted that both the Courts below have concurrently found in favour of sale deed executed by Avtar Singh in favour of Gurbachan Singh. Similarly, both the Courts below have concurrently found in favour of mortgage with possession created by Gurbachan Singh in favour of Balwant Kaur. These findings are based on evidence. This Court cannot embark on re-appreciation of evidence to give its own conclusion. Concurrent findings of fact can be interfered with only when material or relevant evidence not considered which if considered would have led to opposite conclusion or where a finding has been arrived by the Courts below relying on inadmissible evidence which if omitted, opposite conclusion would be possible. In either situation substantial question of law will arise and this Court can interfere on a substantial question of law. 19. In support of this submission, he drew my attention to Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by LRs., 1999(2) PLJ 486. In either situation substantial question of law will arise and this Court can interfere on a substantial question of law. 19. In support of this submission, he drew my attention to Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by LRs., 1999(2) PLJ 486. In para 14 of the report the Honble Supreme Court observed as follows : "We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a certified copy and called upon the defendant to file the original. The defendant refused to do so. The plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of Section 65 of the Evidence Act. Thus was certainly permissible. The mortgage is a document required to be attested by two attestors under Section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in Sections 68 and 71 of the Evidence Act. Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered then except in the case of a Will - it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed, this is clear from Section 68 of the Evidence Act. It reads as follows : "Section 68 - if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence : Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by him it purports to have been executed is specifically denied". 20. 20. In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the Rent Control legislation. In fact, in his evidence as DW-2 the defendant admitted the execution of the mortgage. It must therefore, be taken that there was no specific denial of execution. Hence, it was not necessary for the plaintiff to call the attestor into the witness box, this not being a Will. The plaintiff could, therefore, not be faulted for not examining any of the attestors. Hence, the mortgage stood proved by the certified copy. The Courts below were right in accepting that the deed was proved. Point 2 is decided in favour of plaintiff-appellants. 21. In this case factum, of mortgage has not been denied. Assuming that production of at least one attesting witness of the sale deed/mortgage deed was necessary, Arjan Dass scribe can be viewed as an attesting witness as he had known personally Balwant Kaur as well as her husband Avtar Singh. He had known Gurbachan Singh also personally. He had known this fact also that Balwant Kaur is the real sister of Gurbachan Singh. Endorsement of the Sub-Registrar cannot be lightly brushed aside. There is presumption of correctness attaching to endorsements made by the Sub-Registrar in view of provisions of Sections 58/59 and 60 of the Indian Registration Act. 22. In Piara v. Fatu AIR 1924 Lahore 711, it was held that the registration is a solmen act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction and all things done before him in his official capacity and verified by his signatures will be presumed to be done duly and in order. 23. In the instant case there can be no manner of doubt regarding the execution of the sale deed Ex. 23. In the instant case there can be no manner of doubt regarding the execution of the sale deed Ex. P-2 by Avtar Singh in favour of Gurbachan Singh in view of the endorsement of the Sub-Registrar coupled with the statement of Arjan Dass. Similarly, there can be no manner of doubt regarding execution of the mortgage by Gurbachan Singh in favour of Balwant Kaur in view of endorsement coupled with the fact that the scribe had known Gurbachan Singh, Balwant Kaur and Avtar Singh personally. For the reasons given above, this appeal fails and is dismissed. No order as to costs. Appeal dismissed.