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2011 DIGILAW 1728 (RAJ)

Basanti Lal v. Gokul Das

2011-08-16

MOHAMMAD RAFIQ

body2011
Judgment : This is plaintiffs' second appeal directed against the judgment and decree passed by District Judge, Jhalawar dated 6.11.1987, whereby he affirmed the judgment and decree of the Munsif Magistrate, Bhawanimandi dated 22.9.1979. Facts giving rise to this appeal are that one Baghmal son of Hazari Lal and brother of appellant Basanti Lal, since substituted by his legal representatives, mortgaged an immovable property with Kalu Ram on 3.4.1912 by two separate registered mortgaged deeds for Rs.300/- and Rs.125/- respectively. The mortgage was accompanied by possession of the property. Moti Lal and Kanhaiya Lal, sons of Kalu Ram sub-mortgaged the above property along with some other property belonging to Bheru Lal and Manna Lal, for Rs.845/-in favour of Nathu Lal and Ram Chandra, sons of Laxmi Narayan by registered mortgaged deed vide sub-mortgage deed dated 18.6.1940. Therein, they admitted the factum of mortgage of this property with them. Kesar Bai widow of Baghmal and Basanti Lal sons of Hazari Lal filed suit for redemption of the property before the Munsif Court Bhawani Mandi on 20.11.1967. Description of the property was given in para 2 of the plaint, which was a constructed house having a chowk in the middle and an open land adjoining thereto. It was pleaded that Baghmal and Basanti Lal were sons of Hazari Lal and Chunni Lal was their grandfather. Baghmal has died but during his life time, the two brothers were jointly member of Hindu Undivided Family and Baghmal was its head and they had joint properties. Baghmal is survived by his widow. On defendants' side Nathu Lal and Ram Chandra have also died and they are now represented by their legal heirs. The plaintiffs could not redeem the disputed property earlier because of their poor financial condition. The plaintiffs approached Chand Mal, Basanti Lal, Ballabh and Gokul Das for redemption of said property but they kept avoiding and finally plaintiffs served upon the defendants, legal notice through their advocate, which was not replied and therefore plaintiffs have filed the suit for redemption. The present defendants have came in possession of the said property by way of sub mortgage deed dated 18.6.1940 in which it has been acknowledged that this property was originally mortgaged in favour of Moti Lal and Kanhaiya Lal, who have further mortgaged the same in favour of Nathu Lal and Ram Chandra Jaju. The present defendants have came in possession of the said property by way of sub mortgage deed dated 18.6.1940 in which it has been acknowledged that this property was originally mortgaged in favour of Moti Lal and Kanhaiya Lal, who have further mortgaged the same in favour of Nathu Lal and Ram Chandra Jaju. The factum of mortgage deed dated 3.4.1912 has been acknowledged and admitted in the sub-mortgage deed dated 18.6.1940 on the basis of which the defendants came in possession of the disputed property. The suit was thus within limitation and prayer was made for its redemption. The defendants contested the suit and by filing written statement denied the details of the mortgage and sub-mortgage and also the description of the properties mentioned in the plaint. They denied that the disputed property belonged to Hazari Lal and Chunni Lal and that the plaintiffs are their legal heirs. The property has been partitioned amongst the defendants. It was stated that the suit was under-valued and less court fee has been paid. They denied the mortgage deed dated 3.4.1912 at the time when Nathu Lal and Ram Chandra mortgaged this property on 18.6.1940 with the defendants. It was pleaded that since the plaintiffs relies on the mortgage deed dated 3.4.1912, the suit must be dismissed as time barred. The learned trial court dismissed the suit by its judgment dated 22.9.1979. Out of 15 issues that were framed by it, issue no.3 was with regard to fact whether the suit property was mortgaged by predecessor-in-title of the plaintiffs with Kalu Ram Mahajan vide mortgage deed dated 3.4.2012, which issue was decided by learned trial court against plaintiffs. Issue no.6 was framed with regard to limitation, which issue was also decided by the trial court against the plaintiffs and suit was held to be time barred. Issue no.9 was to the effect whether Kanhaiya Lal and Chandmal, sons of Kalu Ram have sold this property to the defendants vide sale deed dated 22.2.1949 to Nathu Lal for Rs.1100/-, which sale has not been held to be proved under this issue. The suit was however dismissed not only on the ground of limitation but also on certain other issues. The suit was however dismissed not only on the ground of limitation but also on certain other issues. Plaintiffs filed an appeal before the learned District Judge who by his judgment and decree dated 6.11.1987 decided all the issues in favour of plaintiffs except the issue no.6 relating to limitation and held the suit time barred holding that since there was no law with regard to acknowledgment of limitation in the State of Jhalawar at the relevant time, therefore, extension of limitation period would not be available to the plaintiffs. Hence this second appeal. The controversy has thus narrowed down to the question whether the suit has been filed by the plaintiff-appellant within period of limitation or was it time barred? This Court vide its order dated 3.5.1988 admitted the appeal on following substantial questions of law: “(i) Whether in view of notification dated 3.7.1937 issued by His Highness of Jhalawar, the Indian Limitation Act, 1908 could be availed by the plaintiff and hence suit was within time? (ii) Whether in view of Jhalawar Limitation Act and Rajasthan Limitation Adoption Act, 1980 could extend the period of Limitation and suit was within time? (iii) Whether the presumption under Section 114 of the Evidence Act could have been raised against the defendant for non-production of the mortgage deeds?” Shri Parag Rastogi, learned counsel argued that plaintiffs have proved the factum of mortgage deed by producing certified copies of the entry dated 3.4.1912 made in the record of the Collector, Jhalawar relating to mortgage deed as Ex.3 and Ex.4 and issue no.3 in this regard has been decided in favour of plaintiffs by the learned first appellate court. As per proviso to Section 60 of the Transfer of Property Act, 1982, the right of redemption could be extinguished only by the act of the parties or by decree of the court. However, in the present matter, no such contingencies exist. The original mortgage that culminated from the predecessor-in-title of the plaintiff-appellants cannot be therefore taken to have extinguished. It was argued that if there is no evidence to show that mortgage was for fixed period and in this case since the original mortgage deed has not been produced by the defendants, no limitation would apply to the right of the mortgagor to redeem the mortgage property. Usufructuary mortgage property in such a case can be redeemed at any point of time. Usufructuary mortgage property in such a case can be redeemed at any point of time. Learned counsel in support of this argument relied on the judgment of Supreme Court in Harbans vs. Om Prakash & Ors.- AIR 2006 SC 686 . Shri Parag Rastogi, learned counsel for the appellant argued that an application was filed by plaintiffs before the trial court on 16.7.1969 requiring the defendants to produce original mortgage deed dated 3.4.1912. However, one Gokul Das filed an affidavit dated 4.10.1969 on behalf of sub-mortgagee stating that the mortgage deed dated 3.4.1912 was not in their power and possession, but no affidavit in rebuttal was filed on behalf of successor of the main mortgagor Kalu Ram. In view of the recital made in the registered mortgage deed dated 18.6.1940 that the suit property belonging to Chunni and Hazari and was mortgaged by Kanhaiya and Chandmal sons of Kalu Ram in favour of Nathu and Ram Chandra, who acknowledged the mortgage, it was therefore necessary for them to obtain copy of the mortgage deed dated 3.4.1912. In the circumstances, redemption ought not to have been declined by the learned courts below. As per the provisions of Section 114(g) of the Evidence Act for non-production of those mortgage deeds, it should be presumed that if those mortgage deeds were produced, they would be containing facts adverse to the defendants especially in view of the admission contained in registered mortgage deed dated 18.6.1940, Ex.A-1 and entry of sale Ex.A-2 dated 22.2.1949 made on the mortgaged deed dated 18.6.1940 itself. In support of this argument, learned counsel referred on the judgment of Supreme Court in Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and Others- AIR 1968 SC 1413 . Shri Parag Rastogi, learned counsel further argued that as per Section 60 of the Transfer Property Act, mortgagor has a right to redeem the mortgage property at any time after the principal money has become due and as per Article 61(a) of the Schedule to Limitation Act, 1963 which is in para materia with Article 148 of the Schedule to Limitation Act, 1908, except longer period of limitation, right to redeem or recover possession starts only when right accrues and since this redemption could be claimed by plaintiffs at any point of time, the suit filed by them would be within period of limitation. In support of this argument, learned counsel relied on the judgment in Smt. Gulkandi & Ors. vs. Harnarayan Phoolchand & Ors.- AIR 1980 (M.P.) 111 . It was argued that provisions of Limitation Act and the law of acknowledgment on the date of filing of suit would be applicable for such suit. The Limitation Act being a procedural law would apply retrospectively. In support of this argument, learned counsel relied on the judgment of Supreme Court in Gurbachan Singh vs. Satpal Singh & Ors.- AIR 1990 SC 209 , C. Beepathuma & Ors. vs. Velasari Shankaranarayana Kadambolithaya & Ors.- AIR 1965 SC 241 and judgment of this Court in Sumermal & Ors. vs. Birdhichand & Ors.- AIR 1958 (Raj.) 318 . Reliance was also placed on the judgment of Bombay High Court in Amarchand Rajaram Marwadi & Ors. vs. Narayan Vishnu Budhkar-AIR 1932 (Bom) 531 to argue that even in respect of the acknowledgment, law in force at the time of filing of suit should be applied. Shri Parag Rastogi, learned counsel for the appellant has argued that in the Gazette of Jhalawar State dated 16.8.1937, the law of acknowledgment has been extended to the State of Jhalawar with reference to Indian Limitation Act, 1908, therefore, the limitation should be counted from the date of acknowledgment made in the sub mortgage deed dated 18.6.1940. The Limitation for filing such suit in the State of Jhalawar was 30 years. Acknowledgment was made by the defendants, within 30 years, therefore, benefit of Section 19 of the Indian Limitation Act, 1963 would be available to the plaintiffs and the suit must be held to be filed within limitation. Learned counsel argued that the rules of procedure are not by themselves an end but the means to achieve the ends of justice. In support of this argument, he relied on the judgment of Supreme Court in Owners and Parties interested in M.V. “Vali Pero”, vs. Fernandeo Lopez & Ors.- AIR 1989 SC 2206 . Learned counsel argued that the rules of procedure are not by themselves an end but the means to achieve the ends of justice. In support of this argument, he relied on the judgment of Supreme Court in Owners and Parties interested in M.V. “Vali Pero”, vs. Fernandeo Lopez & Ors.- AIR 1989 SC 2206 . Shri Parag Rastogi, learned counsel further argued that judgments cited on behalf of the defendant/respondent with reference to Article 61(b) of the Schedule to Limitation Act, 1963, which is in para materia with Article 134 of the Schedule to Limitation Act 1908, would not be applicable to the present case because here the mortgagee has sub-mortgaged the property and while doing so, he has not claimed to be full owner of the property. Those provisions would be applicable only if the sub-mortgage is made in excess of the rights enjoyed by the mortgagee. In the present case, the mortgagee while creating sub-mortgage has himself acknowledged the fact of mortgage and he did not create an interest in excess of the rights enjoyed by himself. In other words, he did not transfer the property claiming himself to be an owner. In support of this argument, learned counsel relied on the judgment of Privy Council in James Richard Rennel Skinner vs. Kunwar Naunihal Singh-AIR 1929 PC 158 and Full Bench judgment of Allahabad High Court in Mt. Chunai vs. Bam Prasad- AIR 1951 (All.) 167 . Shri Parag Rastogi, learned counsel for the appellant therefore prayed that the suit in the present case being redemption of mortgage filed on 12.11.1968, taking benefit of Section 30 of the Limitation Act should be held to have been filed within limitation and the impugned judgment passed by the learned first appellate court to the extent of Issue no.6 of Limitation against the plaintiffs be set aside and the judgment passed by learned trial court be accordingly set aside and the suit be decreed in favour of plaintiffs. Per contra, Shri Pradeep Shrimal, learned counsel for the defendant-respondents opposed the appeal and argued that both the courts have concurrently decided the issue of limitation against the plaintiff-defendants and rightly because law of acknowledgment of Limitation would not be applicable in the State of Jhalawar. The argument of appellant proceeds on misreading of the Gazette of the State of Jhalawar dated 16.8.1937. It does not contain the stipulation to that effect. The argument of appellant proceeds on misreading of the Gazette of the State of Jhalawar dated 16.8.1937. It does not contain the stipulation to that effect. According to Section 86 of the Limitation Act of the State of Jhalawar, the period of Limitation for filing suit for redemption of the mortgaged property was 30 years and if the benefit of acknowledgment is not extended, the suit for redemption of the property mortgaged dated 3.4.1912 having been filed in 1969, was rightly dismissed as time barred. Learned counsel argued that rights lost by lapse of time cannot be revived as the suit as per the existing laws became time barred and thereby the defendants acquired title in disputed property. In support of this argument, learned counsel relied on the judgment of Allahabad High Court in Tej Bahadur vs. Radha Kishan-Gopi Kishen-AIR 1936 (All.) 858 and judgment of Madras High Court in M. Krishnaswami Naicker vs. A.Thiruvengada Mudaliar & Anr.- AIR 1935 (Mad.) 245 . To the same effect is the judgment of this Court in Ram Chandra vs. Girdhar Lal-RLW 1964 page 69. Learned counsel also relied on the judgment of this Court in Dalu vs. Juharmal & Chturbhuj-1951 ILR (Raj.) 166 wherein it was held that the fact that the property was mortgaged at some time does not give a right to redeem unless it can be shown that the mortgage was subsisting at the time of suit and the suit was within Limitation. On the same proposition of law, reliance was placed on judgment in Barkat Ali vs. Girdhari Singh-RLW 1955 page 472. Shri Pradeep Shrimal also relied on the judgment of Supreme Court in Nani Bai vs. Gita Bai Kom Rama Gunge- AIR 1958 SC 706 and Dilboo & Ors. vs. Dhanraji & Ors.- (2000) 7 SCC 702 and argued that when the property was mortgaged in favour of defendants, which is described by the plaintiff as sub-mortgage on 18.6.1940, much subsequent to 3.4.1912. The period of limitation for filing suit for redemption of such a mortgage would be 12 years from the date of alleged sub-mortgage as provided by Article 61(b) of the Schedule to the Limitation Act, 1963 and Article 134 of the Schedule to Limitation Act 1908. It is therefore prayed that the appeal be dismissed. I have bestowed my anxious consideration to the rival submissions and perused the material on record. It is therefore prayed that the appeal be dismissed. I have bestowed my anxious consideration to the rival submissions and perused the material on record. The Gazette of the State of Jhalawar dated 15.8.1937 which has been heavily relied on by learned counsel for the appellant, refers to decision of Government of the day to constitute a law committee to introduce such of the British Indian Laws to their State on which no law was available there and the law committee was required to suggest amendments in the existing laws on those lines. A clarification was issued in gazette that till the time such amendments are not made, the courts are required to decide the matters on the basis of existing laws of the State. This gazette notification in my view does not have any bearing on the matter because this was merely an advise by the law committee to the High Court of the State of Jhalawar. However, the plaintiffs have produced the entry in Registration Department dated 3.4.1912 as Ex.3 showing the mortgage by Baghmal in favour of Kalu Ram for Rs.125/- and another entry dated 3.4.1912 Ex.4 showing the similar mortgage to the same parties for Rs.300/-. But mortgage deeds dated 3.4.1912 has not been produced on record. The plaintiffs filed application before the trial court on 16.7.1969 calling upon the defendants to produce original mortgage deed, which has not been produced. It has not been proved by either of the parties as to if there was any limitation of the time given in the mortgage deed within which plaintiffs could get the mortgage property redeemed. The Supreme Court in Gopal Krishnaji Ketkar, supra in facts like these, held that as per Section 114(g) of the Evidence Act, a presumption ought to have been drawn against the defendants that mortgage deed sought to be produced would be containing facts adversed to the defendants. This assumes significance in view of acknowledgment of earlier mortgage deed made in the subsequent mortgage deed dated 18.6.1940, Ex.A-1 and entry of sale Ex.A-2 dated 22.2.1949 made on the mortgaged deed dated 18.6.1940 itself. This assumes significance in view of acknowledgment of earlier mortgage deed made in the subsequent mortgage deed dated 18.6.1940, Ex.A-1 and entry of sale Ex.A-2 dated 22.2.1949 made on the mortgaged deed dated 18.6.1940 itself. The Supreme Court in Ganga Dhar vs. Shankar Lal & Ors.-AIR 1958 SCC 770 while dealing with a case of usufructuary mortgage held that ordinarily and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. The rule against clogs on the equity of redemption is that a mortgage shall always be redeemable and a mortgagor's right to redeem shall neither be taken away nor be limited by any contract between the parties. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. In taking that view, the Supreme Court relied on earlier Privy Council judgment in Bakhtawar Begum vs. Husaini Khanam-AIR 1914 Privy Council 36. The Supreme Court in Harbans, supra following its earlier judgment in Ganga Dhar, supra, has held that when mortgage is not for a fixed period, no limitation would apply to mortgagee to redeem the property and property can be redeemed at any time. To the same effect is the law laid down by the Supreme Court in Panchanan Sharma vs. Basudeo Prasad Jaganani & Ors.-1995 Suppl. 2 SCC page 574. Even otherwise, the Act of 1908 contains the limitation for redemption of a mortgage property as 60 years. With the formation of State of Rajasthan, the Indian Limitation Act, 1908 came into force and the limitation for filing a suit for redemption by virtue of Article 148 of the Schedule to the Limitation Act, 1908 was 60 years. However, having regard to the fact that the Limitation Act of 1963 which came into effect on 1.1.1964 a suit by virtue of Section 30 of the Limitation Act, 1963, could be filed within period of seven years i.e. upto 1.1.1971. Since the suit was filed on 20.11.1967, it must be held to have been filed within the prescribed period of Limitation, regardless of whether the plea of acknowledgment is accepted or not. Since the suit was filed on 20.11.1967, it must be held to have been filed within the prescribed period of Limitation, regardless of whether the plea of acknowledgment is accepted or not. The Supreme Court in C.Beepathuma, supra, held that the law of limitation being procedural law, the provisions existing on the day of filing suit would apply. The Full Bench of this Court in Jethmal & Anr. vs. Ambsingh- AIR 1955 (Raj.) 97 held that the law of Limitation relates to the branch of the procedural law and no one can claim a vested right in any period of limitation. It therefore follows that the law which is applicable to the suit or proceeding is the law which is in force when it is instituted. This view was later followed by division bench of this Court in Sumer Mal & Ors. vs. Birdhi Chand & Ors.- AIR 1958 (Raj.) 318 in the context of a suit where benefit of acknowledgment with regard to part payment and continuing effect of acknowledgment was claimed. The plea of limitation relates to the jurisdiction of the Court and Section 3 of the Limitation Act puts an end to the proceedings if it is barred by limitation. If the defendants raise the objection of limitation, the onus to prove that the suit was barred by limitation was on the defendants, is the view expressed by the Supreme Court in Lachhman Singh vs. Hazara Singh- (2008) 5 SCC 444 , which matter incidentally arise out of a suit for redemption of the mortgage of the year 1913, for which the suit was filed in the year 1970 and the same was held to have been filed within a period of limitation. The judgment of Supreme Court relied on by learned counsel for the respondent in Nani Bai, supra cannot be applied to this case, as has been rightly argued by learned counsel for the appellant that Article 134 of the Schedule to the Limitation Act, 1908 which is in para materia with Article 61(a) of Schedule to the Limitation Act, 1963 would apply only if a mortgagee has in making sub-mortgage has created an interest in excess of the rights acquired by him or in doing so, he has acted as a full owner. In the present case, the mortgagee has not acted as a owner of the property. In the present case, the mortgagee has not acted as a owner of the property. In fact, he has in the said mortgage deed acknowledged the factum of earlier mortgage and therefore he cannot be said to have acted in excess of the rights enjoyed by him. The cited judgments are therefore distinguishable. In view of the above discussion, in my considered view, the learned courts below have erred in holding the suit of redemption of mortgage property filed by the plaintiff-appellants as barred by limitation. The findings on issue no.6 on the question of limitation so recorded by the learned trial court as also by the first appellate court are thus reversed and consequently the judgment and decree of the trial court and the first appellate court to the extent of issue no.6 only is set aside. The suit of the plaintiffs is decreed in terms of the prayer made. Consequently the appeal is allowed. Parties to bear their own costs.